US Congress

US Code 1851 - 1926 75:
5 GOVERNMENT ORGANIZATION AND EMPLOYEES FEDERAL ADVISORY COMMITTEE ACT

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5 - 4 - 4 - 5 - 5

5 - 4 - 4 Pay and Allowances (§§ 5101 to 5949)

5 - 4 - 4 - 1 CLASSIFICATION (§§ 5101 to 5115)

5 - 4 - 4 - 1 - 1 Purpose

It is the purpose of this chapter to provide a plan for classification of positionswhereby—

(1)in determining the rate of basic pay which an employee will receive—

(A)

the principle of equal pay for substantially equal work will be followed; and

(B)

variations in rates of basic pay paid to different employees will be in proportion to substantial differences in the difficulty, responsibility, and qualification requirements of the work performed and to the contributions of employees to efficiency and economy in the service; and

(2)

individual positions will, in accordance with their duties, responsibilities, and qualification requirements, be so grouped and identified by classes and grades,as defined by section 5102 of this title, and the various classes will be so described in published standards, as provided by section 5105 of this title, that the resulting position-classification system can be used in all phases of personnel administration.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 443.)

5 - 4 - 4 - 1 - 2 Definitions; application

(a)For the purpose of this chapter—

(1)“agency” means—

(A)

an Executive agency;

(B)

the Library of Congress;

(C)

the Botanic Garden;

(D)

the Government Publishing Office;

(E)

the Office of the Architect of the Capitol; and

(F)

the government of the District of Columbia;

but does not include—

(i)

a Government controlled corporation;

(ii)

the Tennessee Valley Authority;

(iii)

the Virgin Islands Corporation;

(iv)

the Atomic Energy Commission;

(v)

the Central Intelligence Agency;

(vi)

the National Security Agency, Department of Defense;

(vii)

the Government Accountability Office;

(viii)

the Office of the Director of National Intelligence;

(ix)

the Defense Intelligence Agency, Department of Defense; or

(x)

the National Geospatial-Intelligence Agency, Department of Defense;

(2)

“employee” means an individual employed in or under an agency;

(3)

“position” means the work, consisting of the duties and responsibilities, assignable to an employee;

(4)“class” or “class of positions” includes all positions which are sufficiently similar, as to—

(A)

kind or subject-matter of work;

(B)

level of difficulty and responsibility; and

(C)

the qualification requirements of the work;

to warrant similar treatment in personnel and pay administration; and

(5)“grade” includes all classes of positions which, although different with respect to kind or subject-matter of work, are sufficiently equivalent as to—

(A)

level of difficulty and responsibility; and

(B)

level of qualification requirements of the work;

to warrant their inclusion within one range of rates of basic pay in the General Schedule.

(b)

Except as provided by subsections (c) and (d) of this section, this chapter applies to all civilian positions and employees in or under an agency, includingpositions in local boards and appeal boards within the Selective Service Systemand employees occupying those positions.

(c)This chapter does not apply to—

[ (1)

Repealed. Pub. L. 91–375, § 6(c)(9), Aug. 12, 1970, 84 Stat. 776;]

(2)members of the Foreign Service whose pay is fixed under the Foreign Service Act of 1980; and positions in or under the Department of State which are—

(A)

connected with the representation of the United States to international organizations; or

(B)

specifically exempted by statute from this chapter or other classification or pay statute;

(3)

physicians, dentists, nurses, and other employees in the Veterans Health Administration of the Department of Veterans Affairs whose pay is fixed under chapter 73 of title 38;

(4)

teachers, school officials, and employees of the Board of Education of the District of Columbia whose pay is fixed under chapter 15 of title 31, District of Columbia Code; the chief judges and the associate judges of the Superior Court of the District of Columbia and the District of Columbia Court of Appeals; and nonjudicial employees of the District of Columbia court system whose pay is fixed under title 11 of the District of Columbia Code;

(5)

members of the Metropolitan Police, the Fire Department of the District of Columbia, the United States Park Police, and the United States Secret Service Uniformed Division; members of the police force of the National Zoological Park whose pay is fixed under section 5375 of this title; and members of the police forces of the Bureau of Engraving and Printing and the United States Mint whose pay is fixed under section 5378 of this title;

(6)

lighthouse keepers and civilian employees on lightships and vessels of the Coast Guard whose pay is fixed under section 432(f) and (g) [1] of title 14;

(7)

employees in recognized trades or crafts, or other skilled mechanical crafts, or in unskilled, semiskilled, or skilled manual-labor occupations, and other employees including foremen and supervisors in positions having trade, craft, or laboring experience and knowledge as the paramount requirement, and employees in the Bureau of Engraving and Printing whose duties are to perform or to direct manual or machine operations requiring special skill or experience, or to perform or direct the counting, examining, sorting, or other verification of the product of manual or machine operations;

(8)

officers and members of crews of vessels;

(9)

employees of the Government Publishing Office whose pay is fixed under section 305 of title 44;

(10)

civilian professors, instructors, and lecturers at a professional military education school (and, in the case of the George C. Marshall European Center for Security Studies, the Director and the Deputy Director) whose pay is fixed under section 1595, 7371, 8748, or 9371 of title 10; civilian professors, lecturers, and instructors at the Military Academy, the Naval Academy, and the Air Force Academy whose pay is fixed under sections 7438, 8452, and 9438, respectively, of title 10; senior professors, professors, associate and assistant professors, and instructors at the Naval Postgraduate School whose pay is fixed under section 8544 of title 10; the Provost and Academic Dean of the Naval Postgraduate School whose pay is fixed under section 8543 of title 10; civilian professors, instructors, and lecturers in the defense acquisition university structure (including the Defense Systems Management College) whose pay is fixed under section 1746(b) of title 10;

(11)

aliens or noncitizens of the United States who occupy positions outside the United States;

[(12)

Repealed. Pub. L. 104–201, div. C, title XXXV, § 3548(a)(2)(B), Sept. 23, 1996, 110 Stat. 2868;]

(13)

employees who serve without pay or at nominal rates of pay;

(14)

employees whose pay is not wholly from appropriated funds of the United States (other than employees of the Federal Retirement Thrift Investment Management System appointed under section 8474(c)(2) of this title), except that with respect to the Veterans’ Canteen Service, Department of Veterans Affairs, this paragraph applies only to employees necessary for the transaction of the business of the Service at canteens, warehouses, and storage depots whose employment is authorized by section 7802 of title 38;

(15)employees whose pay is fixed under a cooperative agreement between the United States and—

(A)

a State or territory or possession of the United States, or political subdivision thereof; or

(B)

an individual or organization outside the service of the Government of the United States;

(16)

student nurses, medical or dental interns, residents-in-training, student dietitians, student physical therapists, student occupational therapists, and other student employees, assigned or attached to a hospital, clinic, or laboratory primarily for training purposes, whose pay is fixed under subchapter V of chapter 53 of this title or sections 7405 and 7406 of title 38;

(17)

inmates, patients, or beneficiaries receiving care or treatment or living in Government agencies or institutions;

(18)

experts or consultants, when employed temporarily or intermittently in accordance with section 3109 of this title;

(19)

emergency or seasonal employees whose employment is of uncertain or purely temporary duration, or who are employed for brief periods at intervals;

(20)

employees employed on a fee, contract, or piece work basis;

(21)

employees who may lawfully perform their duties concurrently with their private profession, business, or other employment, and whose duties require only a portion of their time, when it is impracticable to ascertain or anticipate the proportion of time devoted to the service of the Government of the United States;

(22)

“teachers” and “teaching positions” as defined by section 901 of title 20;

(23)

administrative patent judges and designated administrative patent judges in the United States Patent and Trademark Office;

(24)

temporary positions in the Bureau of the Census established under section 23 of title 13, and enumerator positions in the Bureau of the Census;

(25)

positions for which rates of basic pay are individually fixed, or expressly authorized to be fixed, by other statute, at or in excess of the rate for level V of the Executive Schedule;

(26)

civilian members of the faculty of the Coast Guard Academy whose pay is fixed under section 186 of title 14;

(27)

members of the police of the Library of Congress whose pay is fixed under section 167 of title 2;

(28)

civilian members of the faculty of the Air Force Institute of Technology whose pay is fixed under section 9414 of title 10;

(29)

administrative law judges appointed under section 3105; or

(30)

members of agency boards of contract appeals appointed under section 7105(a)(2), (c)(2), or (d)(2) of title 41.

(d)

This chapter does not apply to an employee of the Office of the Architect of the Capitol whose pay is fixed by other statute. Subsection (c) of this section, except paragraph (7), does not apply to the Office of the Architect of the Capitol.

(e)

Except as may be specifically provided, this chapter does not apply for pay purposes to any employee of the government of the District of Columbia during fiscal year 2006 or any succeeding fiscal year.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 444; Pub. L. 90–83, § 1(11), Sept. 11, 1967, 81 Stat. 197; Pub. L. 90–610, § 2, Oct. 21, 1968, 82 Stat. 1201; Pub. L. 91–34, § 2(a), June 30, 1969, 83 Stat. 41; Pub. L. 91–358, title I, § 172(f), July 29, 1970, 84 Stat. 591; Pub. L. 91–375, § 6(c)(9), Aug. 12, 1970, 84 Stat. 776; Pub. L. 93–176, § 1, Dec. 5, 1973, 87 Stat. 693; Pub. L. 94–183, § 2(12), (13), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title VIII, § 801(a)(3)(D), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1221, 1224; Pub. L. 96–54, § 2(a)(22), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–70, title III, § 3302(e)(1), (6), Sept. 27, 1979, 93 Stat. 498; Pub. L. 96–191, § 8(b), Feb. 15, 1980, 94 Stat. 33; Pub. L. 96–465, title II, § 2314(b), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 97–468, title VI, § 615(b)(1)(C), Jan. 14, 1983, 96 Stat. 2578; Pub. L. 98–618, title V, § 502(a), Nov. 8, 1984, 98 Stat. 3302; Pub. L. 99–145, title V, § 504(b), Nov. 8, 1985, 99 Stat. 622; Pub. L. 99–335, title II, § 207(n), June 6, 1986, 100 Stat. 598; Pub. L. 100–135, § 1(b)(2), Oct. 16, 1987, 101 Stat. 811; Pub. L. 101–189, div. A, title XI, § 1124(e), Nov. 29, 1989, 103 Stat. 1560; Pub. L. 101–474, § 5(h), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 101–509, title V, § 529 [title I, §§ 101(b)(9)(F), 104(d)(1), 109(a)(2)], Nov. 5, 1990, 104 Stat. 1427, 1441, 1447, 1451; Pub. L. 101–510, div. A, title XII, § 1209(h)(2), Nov. 5, 1990, 104 Stat. 1667; Pub. L. 102–40, title IV, § 403(c)(1), May 7, 1991, 105 Stat. 240; Pub. L. 102–54, § 13(b)(1), (2), June 13, 1991, 105 Stat. 274; Pub. L. 103–160, div. A, title V, § 533(c), title IX, § 923(b), Nov. 30, 1993, 107 Stat. 1658, 1731; Pub. L. 103–359, title V, § 501(g), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103–446, title XII, § 1203(b), Nov. 2, 1994, 108 Stat. 4689; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), div. C, title XXXV, § 3548(a)(2), Sept. 23, 1996, 110 Stat. 2687, 2868; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(b)(3)], Nov. 29, 1999, 113 Stat. 1536, 1501A–583; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 108–375, div. A, title V, § 557(b)(5), Oct. 28, 2004, 118 Stat. 1916; Pub. L. 109–356, title III, § 303(b), Oct. 16, 2006, 120 Stat. 2040; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 111–282, § 4(c)(1), Oct. 15, 2010, 124 Stat. 3043; Pub. L. 111–350, § 5(a)(8), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 114–113, div. M, title IV, § 402, Dec. 18, 2015, 129 Stat. 2921; Pub. L. 115–232, div. A, title VIII, § 809(c)(1), Aug. 13, 2018, 132 Stat. 1841.)

5 - 4 - 4 - 1 - 3 Determination of applicability

The Office of Personnel Management shall determine finally the applicability of section 5102 of this title to specific positions and employees, except for positions and employees in the Office of the Architect of the Capitol.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 446; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 1 - 4 Basis for grading positions

The General Schedule, the symbol for which is “GS”, is the basic pay schedule for positions to which this chapter applies. The General Schedule is divided intogrades of difficulty and responsibility of work, as follows:

(1)Grade GS–1 includes those classes of positions the duties of which are to perform, under immediate supervision, with little or no latitude for the exercise of independent judgment—

(A)

the simplest routine work in office, business, or fiscal operations; or

(B)

elementary work of a subordinate technical character in a professional, scientific, or technical field.

(2)Grade GS–2 includes those classes of positions the duties of which are—

(A)

to perform, under immediate supervision, with limited latitude for the exercise of independent judgment, routine work in office, business, or fiscal operations, or comparable subordinate technical work of limited scope in a professional, scientific, or technical field, requiring some training or experience; or

(B)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(3)Grade GS–3 includes those classes of positions the duties of which are—

(A)to perform, under immediate or general supervision, somewhat difficult and responsible work in office, business, or fiscal operations, or comparable subordinate technical work of limited scope in a professional, scientific, or technical field, requiring in either case—

(i)

some training or experience;

(ii)

working knowledge of a special subject matter; or

(iii)

to some extent the exercise of independent judgment in accordance with well-established policies, procedures, and techniques; or

(B)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(4)Grade GS–4 includes those classes of positions the duties of which are—

(A)to perform, under immediate or general supervision, moderately difficult and responsible work in office, business, or fiscal operations, or comparable subordinate technical work in a professional, scientific, or technical field, requiring in either case—

(i)

a moderate amount of training and minor supervisory or other experience;

(ii)

good working knowledge of a special subject matter or a limited field of office, laboratory, engineering, scientific, or other procedure and practice; and

(iii)

the exercise of independent judgment in accordance with well-established policies, procedures, and techniques; or

(B)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(5)Grade GS–5 includes those classes of positions the duties of which are—

(A)to perform, under general supervision, difficult and responsible work in office, business, or fiscal administration, or comparable subordinate technical work in a professional, scientific, or technical field, requiring in either case—

(i)

considerable training and supervisory or other experience;

(ii)

broad working knowledge of a special subject matter or of office, laboratory, engineering, scientific, or other procedure and practice; and

(iii)

the exercise of independent judgment in a limited field;

(B)

to perform, under immediate supervision, and with little opportunity for the exercise of independent judgment, simple and elementary work requiring professional, scientific, or technical training; or

(C)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(6)Grade GS–6 includes those classes of positions the duties of which are—

(i)

considerable training and supervisory or other experience;

(ii)

broad working knowledge of a special and complex subject matter, procedure, or practice, or of the principles of the profession, art, or science involved; and

(iii)

to a considerable extent the exercise of independent judgment; or

(B)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(7)Grade GS–7 includes those classes of positions the duties of which are—

(A)to perform, under general supervision, work of considerable difficulty and responsibility along special technical or supervisory lines in office, business, or fiscal administration, or comparable subordinate technical work in a professional, scientific, or technical field, requiring in either case—

(i)

considerable specialized or supervisory training and experience;

(ii)

comprehensive working knowledge of a special and complex subject matter, procedure, or practice, or of the principles of the profession, art, or science involved; and

(iii)

to a considerable extent the exercise of independent judgment;

(B)under immediate or general supervision, to perform somewhat difficult work requiring—

(i)

professional, scientific, or technical training; and

(ii)

to a limited extent, the exercise of independent technical judgment; or

(C)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(8)Grade GS–8 includes those classes of positions the duties of which are—

(A)to perform, under general supervision, very difficult and responsible work along special technical or supervisory lines in office, business, or fiscal administration, requiring—

(i)

considerable specialized or supervisory training and experience;

(ii)

comprehensive and thorough working knowledge of a specialized and complex subject matter, procedure, or practice, or of the principles of the profession, art, or science involved; and

(iii)

to a considerable extent the exercise of independent judgment; or

(B)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(9)Grade GS–9 includes those classes of positions the duties of which are—

(A)to perform, under general supervision, very difficult and responsible work along special technical, supervisory, or administrative lines in office, business, or fiscal administration, requiring—

(i)

somewhat extended specialized training and considerable specialized, supervisory, or administrative experience which has demonstrated capacity for sound independent work;

(ii)

thorough and fundamental knowledge of a special and complex subject matter, or of the profession, art, or science involved; and

(iii)

considerable latitude for the exercise of independent judgment;

(B)with considerable latitude for the exercise of independent judgment, to perform moderately difficult and responsible work, requiring—

(i)

professional, scientific, or technical training equivalent to that represented by graduation from a college or university of recognized standing; and

(ii)

considerable additional professional, scientific, or technical training or experience which has demonstrated capacity for sound independent work; or

(C)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(10)Grade GS–10 includes those classes of positions the duties of which are—

(A)to perform, under general supervision, highly difficult and responsible work along special technical, supervisory, or administrative lines in office, business, or fiscal administration, requiring—

(i)

somewhat extended specialized, supervisory, or administrative training and experience which has demonstrated capacity for sound independent work;

(ii)

thorough and fundamental knowledge of a specialized and complex subject matter, or of the profession, art, or science involved; and

(iii)

considerable latitude for the exercise of independent judgment; or

(B)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(11)Grade GS–11 includes those classes of positions the duties of which are—

(A)to perform, under general administrative supervision and with wide latitude for the exercise of independent judgment, work of marked difficulty and responsibility along special technical, supervisory, or administrative lines in office, business, or fiscal administration, requiring—

(i)

extended specialized, supervisory, or administrative training and experience which has demonstrated important attainments and marked capacity for sound independent action or decision; and

(ii)

intimate grasp of a specialized and complex subject matter, or of the profession, art, or science involved, or of administrative work of marked difficulty;

(B)

with wide latitude for the exercise of independent judgment, to perform responsible work of considerable difficulty requiring somewhat extended professional, scientific, or technical training and experience which has demonstrated important attainments and marked capacity for independent work; or

(C)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(12)Grade GS–12 includes those classes of positions the duties of which are—

(A)to perform, under general administrative supervision, with wide latitude for the exercise of independent judgment, work of a very high order of difficulty and responsibility along special technical, supervisory, or administrative lines in office, business, or fiscal administration, requiring—

(i)

extended specialized, supervisory, or administrative training and experience which has demonstrated leadership and attainments of a high order in specialized or administrative work; and

(ii)

intimate grasp of a specialized and complex subject matter or of the profession, art, or science involved;

(B)

under general administrative supervision, and with wide latitude for the exercise of independent judgment, to perform professional, scientific, or technical work of marked difficulty and responsibility requiring extended professional, scientific, or technical training and experience which has demonstrated leadership and attainments of a high order in professional, scientific, or technical research, practice, or administration; or

(C)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(13)Grade GS–13 includes those classes of positions the duties of which are—

(A)

to perform, under administrative direction, with wide latitude for the exercise of independent judgment, work of unusual difficulty and responsibility along special technical, supervisory, or administrative lines, requiring extended specialized, supervisory, or administrative training and experience which has demonstrated leadership and marked attainments;

(B)

to serve as assistant head of a major organization involving work of comparable level within a bureau;

(C)

to perform, under administrative direction, with wide latitude for the exercise of independent judgment, work of unusual difficulty and responsibility requiring extended professional, scientific, or technical training and experience which has demonstrated leadership and marked attainments in professional, scientific, or technical research, practice, or administration; or

(D)

to perform other work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(14)Grade GS–14 includes those classes of positions the duties of which are—

(A)

to perform, under general administrative direction, with wide latitude for the exercise of independent judgment, work of exceptional difficulty and responsibility along special technical, supervisory, or administrative lines which has demonstrated leadership and unusual attainments;

(B)

to serve as head of a major organization within a bureau involving work of comparable level;

(C)

to plan and direct or to plan and execute major professional, scientific, technical, administrative, fiscal, or other specialized programs, requiring extended training and experience which has demonstrated leadership and unusual attainments in professional, scientific, or technical research, practice, or administration, or in administrative, fiscal, or other specialized activities; or

(D)

to perform consulting or other professional, scientific, technical, administrative, fiscal, or other specialized work of equal importance, difficulty, and responsibility, and requiring comparable qualifications.

(15)Grade GS–15 includes those classes of positions the duties of which are—

(A)

to perform, under general administrative direction, with very wide latitude for the exercise of independent judgment, work of outstanding difficulty and responsibility along special technical, supervisory, or administrative lines which has demonstrated leadership and exceptional attainments;

(B)

to serve as head of a major organization within a bureau involving work of comparable level;

(C)

to plan and direct or to plan and execute specialized programs of marked difficulty, responsibility, and national significance, along professional, scientific, technical, administrative, fiscal, or other lines, requiring extended training and experience which has demonstrated leadership and unusual attainments in professional, scientific, or technical research, practice, or administration, or in administrative, fiscal, or other specialized activities; or

(D)

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 446; Pub. L. 101–509, title V, § 529 [title I, § 102(b)(1)], Nov. 5, 1990, 104 Stat. 1427, 1443.)

5 - 4 - 4 - 1 - 5 Standards for classification of positions

(a)The Office of Personnel Management, after consulting the agencies, shall prepare standards for placing positions in their proper classes and grades. The Office may make such inquiries or investigations of the duties, responsibilities, and qualification requirements of positions as it considers necessary for this purpose. The agencies, on request of the Office, shall furnish information for and cooperate in the preparation of the standards. In the standards, which shall be published in such form as the Office may determine, the Office shall—

(1)

define the various classes of positions in terms of duties, responsibilities, and qualification requirements;

(2)

establish the official class titles; and

(3)

set forth the grades in which the classes have been placed by the Office.

(b)

The Office, after consulting the agencies to the extent considered necessary, shall revise, supplement, or abolish existing standards, or prepare new standards, so that, as nearly as may be practicable, positions existing at any given time will be covered by current published standards.

(c)

The official class titles established under subsection (a)(2) of this section shall be used for personnel, budget, and fiscal purposes. However, this requirement does not prevent the use of organizational or other titles for internal administration, public convenience, law enforcement, or similar purposes.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 452; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 1 - 6 Basis for classifying positions

(a)

Each position shall be placed in its appropriate class. The basis for determining the appropriate class is the duties and responsibilities of the position and the qualifications required by the duties and responsibilities.

(b)

Each class shall be placed in its appropriate grade. The basis for determining the appropriate grade is the level of difficulty, responsibility, and qualification requirements of the work of the class.

(c)

Appropriated funds may not be used to pay an employee who places a supervisory position in a class and grade solely on the basis of the size of the organization unit or the number of subordinates supervised. These factors may be given effect only to the extent warranted by the work load of the organization unit and then only in combination with other factors, such as the kind, difficulty, and complexity of work supervised, the degree and scope of responsibility delegated to the supervisor, and the kind, degree, and character of the supervision exercised.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 453.)

5 - 4 - 4 - 1 - 7 Classification of positions

Except as otherwise provided by this chapter, each agency shall place each position under its jurisdiction in its appropriate class and grade in conformance with standards published by the Office of Personnel Management or, if no published standards apply directly, consistently with published standards. When facts warrant, an agency may change a position which it has placed in a class or grade under this section from that class or grade to another class or grade. Subject to subchapter VI of chapter 53 of this title, these actions of an agency are the basis for pay and personnel transactions until changed by certificate of the Office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 453; Pub. L. 95–454, title VIII, § 801(a)(3)(E), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1222, 1224.)

5 - 4 - 4 - 1 - 8 Classification of positions above GS–15

(a)The Office of Personnel Management may, for any Executive agency—

(1)

establish, and from time to time revise, the maximum number of positions which may at any one time be classified above GS–15; and

(2)

establish standards and procedures published by the Director of the Office of Personnel Management in such form as the Director may determine (including requiring agencies, where necessary in the judgment of the Office, to obtain the prior approval of the Office) in accordance with which positions may be classified above GS–15.

(b)

The President, rather than the Office, shall exercise the authority under subsection (a) in the case of positions proposed to be placed in the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

(c)

The Librarian of Congress may classify positions in the Library of Congressabove GS–15 pursuant to standards established by the Office in subsection (a)(2).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 453; Pub. L. 89–632, § 1(a)–(d), Oct. 8, 1966, 80 Stat. 878; Pub. L. 90–83, § 1(12), Sept. 11, 1967, 81 Stat. 197; Pub. L. 91–187, § 1, Dec. 30, 1969, 83 Stat. 850; Pub. L. 91–206, § 5(a), Mar. 10, 1970, 84 Stat. 51; Pub. L. 91–596, § 30, Dec. 29, 1970, 84 Stat. 1619; Pub. L. 91–644, title I, § 11, Jan. 2, 1971, 84 Stat. 1889; Pub. L. 91–656, § 9, Jan. 8, 1971, 84 Stat. 1955; Pub. L. 92–261, § 12, Mar. 24, 1972, 86 Stat. 112; Pub. L. 90–351, title I, § 506(c), as added Pub. L. 93–83, § 2, Aug. 6, 1973, 87 Stat. 211; Pub. L. 93–282, title III, § 301, May 14, 1974, 88 Stat. 137; Pub. L. 93–406, title I, § 507(b), title II, § 1051(b)(2), title IV, § 4002(c), Sept. 2, 1974, 88 Stat. 894, 951, 1005; Pub. L. 93–415, title II, § 201(g), Sept. 7, 1974, 88 Stat. 1113; Pub. L. 93–463, title IV, § 410, Oct. 23, 1974, 88 Stat. 1414; Pub. L. 93–516, title II, § 208(b), Dec. 7, 1974, 88 Stat. 1629; Pub. L. 93–651, title II, § 208(b), Nov. 21, 1974, 89 Stat. 2–14; Pub. L. 94–183, § 2(14), (15), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 94–233, § 13, Mar. 15, 1976, 90 Stat. 233; Pub. L. 94–503, title II, § 202(a), Oct. 15, 1976, 90 Stat. 2426; Pub. L. 95–91, title VII, § 710(b), Aug. 4, 1977, 91 Stat. 609; Pub. L. 95–190, § 11(a), Nov. 16, 1977, 91 Stat. 1398; Pub. L. 95–219, § 3(c), Dec. 28, 1977, 91 Stat. 1614; Pub. L. 95–251, § 1, Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title IV, § 414(a)(1)(A), (C), (D), Oct. 13, 1978, 92 Stat. 1177; Pub. L. 95–486, § 10, Oct. 20, 1978, 92 Stat. 1634; Pub. L. 95–563, § 14(g), Nov. 1, 1978, 92 Stat. 2390; Pub. L. 95–612, § 3(b), Nov. 8, 1978, 92 Stat. 3091; Pub. L. 95–624, § 22, Nov. 9, 1978, 92 Stat. 3466; Pub. L. 95–630, title V, § 502(c), Nov. 10, 1978, 92 Stat. 3681; Pub. L. 96–54, § 2(a)(23), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–191, § 8(c), Feb. 15, 1980, 94 Stat. 33; Pub. L. 100–325, § 2(g), May 30, 1988, 102 Stat. 581; Pub. L. 100–702, title I, § 104(c)(2), Nov. 19, 1988, 102 Stat. 4645; Pub. L. 101–474, § 5(i), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 101–509, title V, § 529 [title I, § 102(b)(2)], Nov. 5, 1990, 104 Stat. 1427, 1443; Pub. L. 102–378, § 2(23), Oct. 2, 1992, 106 Stat. 1348; Pub. L. 110–372, § 2(c)(4), Oct. 8, 2008, 122 Stat. 4044; Pub. L. 111–68, div. A, title I, § 1403, Oct. 1, 2009, 123 Stat. 2038.)

5 - 4 - 4 - 1 - 9 Positions classified by statute

(a)

The position held by an employee of the Department of Agriculture while he, under section 450d of title 7,[1] is designated and vested with a delegated regulatory function or part thereof shall be classified in accordance with this chapter, but not lower than GS–14.

(b)

(1)

The position held by a fully experienced and qualified railroad safetyinspector of the Department of Transportation shall be classified in accordance with this chapter, but not lower than GS–12.

(2)

The position held by a railroad safety specialist of the Department shall be classified in accordance with this chapter, but not lower than GS–13.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 455; Pub. L. 91–34, § 2(b), June 30, 1969, 83 Stat. 41; Pub. L. 93–406, title II, § 1051(b)(1), Sept. 2, 1974, 88 Stat. 951; Pub. L. 95–454, title IX, § 906(b), Oct. 13, 1978, 92 Stat. 1226; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(G)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 103–272, § 4(b)(1), July 5, 1994, 108 Stat. 1361; Pub. L. 105–206, title I, § 1102(e)(2), July 22, 1998, 112 Stat. 704.)

5 - 4 - 4 - 1 - 10 Review of classification of positions

(a)

The Office of Personnel Management, from time to time, shall review such number of positions in each agency as will enable the Office to determine whether the agency is placing positions in classes and grades in conformance with or consistently with published standards.

(b)

When the Office finds under subsection (a) of this section that a position is not placed in its proper class and grade in conformance with published standards or that a position for which there is no published standard is not placed in the class and grade consistently with published standards, it shall, after consultation with appropriate officials of the agency concerned, place the position in its appropriate class and grade and shall certify this action to theagency. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 455; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 1 - 11 Revocation and restoration of authority to classify positions

(a)When the Office of Personnel Management finds that an agency is not placing positions in classes and grades in conformance with or consistently with published standards, it may revoke or suspend the authority granted to theagency by section 5107 of this title and require that prior approval of the Office be secured before an action placing a position in a class and grade becomes effective for payroll and other personnel purposes. The Office may limit the revocation or suspension to—

(1)

the departmental or field service, or any part thereof;

(2)

a geographic area;

(3)

an organization unit or group of organization units;

(4)

certain types of classification actions;

(5)

classes in particular occupational groups or grades; or

(6)

classes for which standards have not been published.

(b)

After revocation or suspension, the Office may restore the authority to the extent that it is satisfied that later actions placing positions in classes and grades will be in conformance with or consistent with published standards.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 455; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 1 - 12 General authority of the Office of Personnel Management

(a)Notwithstanding section 5107 of this title, the Office of Personnel Management may—

(1)

ascertain currently the facts as to the duties, responsibilities, and qualification requirements of a position;

(2)

place in an appropriate class and grade a newly created position or a position coming initially under this chapter;

(3)

decide whether a position is in its appropriate class and grade; and

(4)

change a position from one class or grade to another class or grade when the facts warrant.

The Office shall certify to the agency concerned its action under paragraph (2) or (4) of this subsection. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.

(b)

An employee affected or an agency may request at any time that the Office exercise the authority granted to it by subsection (a) of this section and the Office shall act on the request.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 456; Pub. L. 95–454, title IX, § 906(a)(2), (3), (17), Oct. 13, 1978, 92 Stat. 1224, 1226.)

5 - 4 - 4 - 1 - 13 Classification records

The Office of Personnel Management may—

(1)

prescribe the form in which each agency shall record the duties and responsibilities of positions and the places where these records shall be maintained;

(2)

examine these or other pertinent records of the agency; and

(3)

interview employees of the agency who have knowledge of the duties and responsibilities of positions and information as to the reasons for placing aposition in a class or grade.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 456; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 1 - 14 Regulations

Repealed Aug. 22, 1986,

5 - 4 - 4 - 2 PAY RATES AND SYSTEMS (§§ 5301 to 5392)

5 - 4 - 4 - 2 - 1 PAY COMPARABILITY SYSTEM (§§ 5301 to 5308)

5 - 4 - 4 - 2 - 1 - 1 Policy

It is the policy of Congress that Federal pay fixing for employees under the General Schedule be based on the principles that—

(1)

there be equal pay for substantially equal work within each local pay area;

(2)

within each local pay area, pay distinctions be maintained in keeping with work and performance distinctions;

(3)

Federal pay rates be comparable with non-Federal pay rates for the same levels of work within the same local pay area; and

(4)

any existing pay disparities between Federal and non-Federal employees should be completely eliminated.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 458; Pub. L. 91–656, § 2(a), Jan. 8, 1971, 84 Stat. 1946; Pub. L. 96–465, title II, § 2314(c)(1), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1429.)

5 - 4 - 4 - 2 - 1 - 2 Definitions

For the purpose of this subchapter—

(1)the term “statutory pay system” means a pay system under—

(A)

subchapter III, relating to the General Schedule;

(B)

section 403 of the Foreign Service Act of 1980, relating to the Foreign Service of the United States; or

(C)

chapter 74 of title 38, relating to the Veterans Health Administration (other than a position subject to section 7451 of title 38);

(2)

the term “ECI” means the Employment Cost Index (wages and salaries, private industry workers) published quarterly by the Bureau of Labor Statistics;

(3)

the “base quarter” for any year is the 3-month period ending on September 30 of such year;

(4)

the term “pay agent” means the agent designated by the President under section 5304(d)(1);

(5)

the term “locality” or “pay locality” means any locality, as established or modified under section 5304;

(6)

the term “pay disparity”, as used with respect to a locality, means the extent to which rates of pay payable under the General Schedule are generally lower than the rates paid for the same levels of work by non-Federal workers in the same locality; except as otherwise required in this subchapter, a pay disparityshall be expressed as a single percentage which, if uniformly applied to employees within the locality who are receiving rates of pay under the General Schedule, would cause the rates payable to such employees to become substantially equal (when considered in the aggregate) to the rates paid to non-Federal workers for the same levels of work in the same locality;

(7)

the term “comparability payment” means a payment payable under section 5304;

(8)

the term “rates of pay under the General Schedule”, “rates of pay for the General Schedule”, or “scheduled rates of basic pay” means the rates of basic pay under the General Schedule as established by section 5332, excluding pay under section 5304 and any other additional pay of any kind; and

(9)

the term “General Schedule position” means any position to which subchapter III applies.

(Added Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1429; amended Pub. L. 102–378, § 2(25), Oct. 2, 1992, 106 Stat. 1348; Pub. L. 103–89, § 3(b)(1)(E), Sept. 30, 1993, 107 Stat. 981; Pub. L. 108–411, title III, § 301(a)(1), Oct. 30, 2004, 118 Stat. 2313.)

5 - 4 - 4 - 2 - 1 - 3 Annual adjustments to pay schedules

(a)

Effective as of the first day of the first applicable pay period beginning on or after January 1 of each calendar year, the rates of basic pay for each statutory pay system shall be increased by the percentage (rounded to the nearest one-tenth of 1 percent) equal to one-half of 1 percentage point less than the percentage by which the ECI for the base quarter of the year before the preceding calendar year exceeds the ECI for the base quarter of the second year before the preceding calendar year (if at all).

(b)

(1)If, because of national emergency or serious economic conditions affecting the general welfare, the President should consider the pay adjustment which would otherwise be required by subsection (a) in any year to be inappropriate, the President shall—

(A)

prepare and transmit to Congress before September 1 of the preceding calendar year a plan for such alternative pay adjustments as he considers appropriate, together with the reasons therefor; and

(B)

adjust the rates of pay of each statutory pay system, in accordance with such plan, effective on the same day as the increase under subsection (a) would otherwise take effect.

(2)

In evaluating an economic condition affecting the general welfare under this subsection, the President shall consider pertinent economic measures including, but not limited to, the Indexes of Leading Economic Indicators, the Gross National Product, the unemployment rate, the budget deficit, the Consumer Price Index, the Producer Price Index, the Employment Cost Index, and the Implicit Price Deflator for Personal Consumption Expenditures.

(3)

The President shall include in the report to Congress under paragraph (1)(A) his assessment of the impact that the alternative pay adjustments under this subsection will have on the Government’s ability to recruit and retain well-qualified employees.

(c)The rates of basic pay that take effect under this section—

(1)

shall modify, supersede, or render inapplicable, as the case may be, to the extent inconsistent therewith, any prior rates of basic pay under the statutory pay system involved (as last adjusted under this section or prior provisions of law); and

(2)

shall be printed in the Federal Register and the Code of Federal Regulations.

(d)

An increase in rates of basic pay that takes effect under this section is not an equivalent increase in pay within the meaning of section 5335.

(e)

This section does not impair any authority pursuant to which rates of basic pay may be fixed by administrative action.

(f)

Pay may not be paid, by reason of any provision of this section (disregarding any comparability payment payable), at a rate in excess of the rate of basic pay payable for level V of the Executive Schedule.

(g)

Any rate of pay under this section shall be initially adjusted, effective on the effective date of the rate of pay, under conversion rules prescribed by the President or by such agency or agencies as the President may designate.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 458; Pub. L. 90–206, title II, § 207, Dec. 16, 1967, 81 Stat. 631; Pub. L. 91–375, § 6(c)(10), Aug. 12, 1970, 84 Stat. 776; Pub. L. 94–183, § 2(16), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–465, title II, § 2314(c)(2), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1430.)

5 - 4 - 4 - 2 - 1 - 4 Locality-based comparability payments

(a)Pay disparities shall be identified and reduced as follows:

(1)

Comparability payments shall be payable within each locality determined to have a pay disparity greater than 5 percent.

(2)

(A)

The localities having pay disparities, and the size of those disparities, shall, for purposes of any comparability payment scheduled to take effect in any calendar year, be determined in accordance with the appropriate report, as prepared and submitted to the President under subsection (d)(1) for purposes of such calendar year.

(B)

Any computation necessary to determine the size of the comparability payment to become payable for any locality in a year (as well as any determination as to the size of any pay disparity remaining after that comparability payment is made) shall likewise be made using data contained in the appropriate report (described in subparagraph (A)) so prepared and submitted for purposes of such calendar year.

(3)Subject to paragraph (4), the amount of the comparability paymentspayable under this subsection in a calendar year within any locality in which a comparability payment is payable shall be computed using such percentage as the President determines for such locality under subsection (d)(2), except that—

(A)

the percentage for the first calendar year in which any amounts are payable under this section may not be less than ⅕ of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(B)

the percentage for the second calendar year in which any amounts are payable under this section may not be less than 3⁄10 of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(C)

the percentage for the third calendar year in which any amounts are payable under this section may not be less than ⅖ of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(D)

the percentage for the fourth calendar year in which any amounts are payable under this section may not be less than ½ of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(E)

the percentage for the fifth calendar year in which any amounts are payable under this section may not be less than ⅗ of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(F)

the percentage for the sixth calendar year in which any amounts are payable under this section may not be less than 7⁄10 of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(G)

the percentage for the seventh calendar year in which any amounts are payable under this section may not be less than ⅘ of the amount needed to reduce the pay disparity of the locality involved to 5 percent;

(H)

the percentage for the eighth calendar year in which any amounts are payable under this section may not be less than 9⁄10 of the amount needed to reduce the pay disparity of the locality involved to 5 percent; and

(I)

the percentage for the ninth calendar year in which any amounts are payable under this section, and any year thereafter, may not be less than the full amount necessary to reduce the pay disparity of the locality involved to 5 percent.

(4)

Nothing in this section shall be considered to preclude the President, in his discretion, from adjusting comparability payments to a level higher than the minimum level otherwise required in a calendar year, including to the level necessary to eliminate a locality’s pay disparity completely.

(b)

After the ninth calendar year (referred to in subsection (a)(3)(I)), the level of comparability payments payable within such locality may be reduced for any subsequent calendar year, but only if, or to the extent that, the reduction would not immediately create another pay disparity in excess of 5 percent within thelocality (taking into consideration any comparability payments remaining payable).

(c)

(1)The amount of the comparability payment payable within any particularlocality during a calendar year—

(A)

shall be stated as a single percentage, which shall be uniformly applicable to General Schedule positions within the locality; and

(B)

shall, for any employee entitled to receive a comparability payment, be computed by applying that percentage to such employee’s scheduled rate of basic pay (or, if lower due to a limitation on the rate payable, the rate actually payable), subject to subsection (g).

(2)A comparability payment—

(A)

shall be considered to be part of basic pay for purposes of retirement under chapter 83 or 84, as applicable, life insurance under chapter 87, and premium pay under subchapter V of chapter 55, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe; and

(B)

shall be paid in the same manner and at the same time as the basic pay payable to such employee pursuant to any provision of law outside of this section.

(3)

Nothing in this subchapter shall be considered to permit or require that any portion of a comparability payment be taken into account for purposes of any adjustment under section 5303.

(4)

(A)

Only employees receiving scheduled rates of basic pay (subject to any pay limitation which may apply) shall be eligible for comparability payments under this section.

(B)

Comparability payments shall not be payable for service performed in any position which may not, under subsection (f)(1)(A), be included within a pay locality.

(d)In order to carry out this section, the President shall—

(1)direct such agent as he considers appropriate to prepare and submit to him annually, after considering such views and recommendations as may be submitted under subsection (e) (but not later than 13 months before the start of the calendar year for purposes of which it is prepared), a report that—

(A)

compares the rates of pay under the General Schedule (disregarding any described in section 5302(8)(C)) [1] with the rates of pay generally paid to non-Federal workers for the same levels of work within each pay locality, as determined on the basis of appropriate surveys that shall be conducted by the Bureau of Labor Statistics;

(B)

based on data from such surveys, identifies each locality in which a pay disparity exists and specifies the size of each such pay disparity(before and after taking into consideration any comparability paymentspayable);

(C)

makes recommendations for appropriate comparability payments, in conformance with applicable requirements of this section; and

(D)

includes the views and recommendations submitted under subsection (e);

(2)

after considering the report of his agent (including the views and recommendations referred to in subsection (e)(2)(C), provide for or adjust comparability payments in conformance with applicable requirements of this section, effective as of the beginning of the first applicable pay period commencing on or after January 1 of the applicable year; and

(3)transmit to Congress a report of the actions taken under paragraph (2) (together with a copy of the report submitted to him by his agent, including the views and recommendations referred to in subsection (e)(2)(C)) which shall—

(A)

identify each pay locality;

(B)

specify which localities have pay disparities in excess of 5 percent, and the size of the disparity existing in each of those localities, according to the pay agent’s most recent report under paragraph (1) (before and after taking into consideration any comparability payments payable); and

(C)

indicate the size of the respective comparability payments (expressed as percentages) which will be in effect under paragraph (2) for the various pay localities specified under subparagraph (B) for the applicable calendar year.

(e)

(1)The President shall establish a Federal Salary Council of 9 members, of whom—

(A)

3 shall be chosen from among persons generally recognized for their impartiality, knowledge, and experience in the field of labor relations and pay policy; and

(B)

6 shall be representatives of employee organizations which represent substantial numbers of employees holding General Schedule positions, and who shall be selected giving due consideration to such factors as the relative numbers of employees represented by the various organizations, except that not more than 3 members of the Council at any one time shall be from a single employee organization, council, federation, alliance, association, or affiliation of employee organizations.

Members of the Council shall not receive pay by reason of their service on the Council, nor shall members who are not otherwise employees of the United States be considered employees by reason of any such service. However, members under subparagraph (A) may be paid expenses in accordance with section 5703. The President shall designate one of the members to serve as Chairman of the Federal Salary Council. One of the 3 members under subparagraph (A) may be the Chairman of the Federal Prevailing Rate Advisory Committee, notwithstanding the restriction under section 5347(a)(1), and such individual may also be designated to serve as Chairman of the Federal Salary Council.

(2)The pay agent shall—

(A)provide for meetings with the Council and give thorough consideration to the views and recommendations of the Council and the individual views and recommendations, if any, of the members of the Council regarding—

(i)

the establishment or modification of pay localities;

(ii)

the coverage of the surveys of pay localities conducted by the Bureau of Labor Statistics under subsection (d)(1)(A) (including, but not limited to, the occupations, establishment sizes, and industries to be surveyed, and how pay localities are to be surveyed);

(iii)

the process of comparing the rates of pay payable under the General Schedule with rates of pay for the same levels of work performed by non-Federal workers; and

(iv)

the level of comparability payments that should be paid in order to eliminate or reduce pay disparities in accordance with the requirements of this section;

(B)

give thorough consideration to the views and recommendations of employee organizations not represented on the Council regarding the subjects in subparagraph (A)(i)–(iv); and

(C)

include in its report to the President the views and recommendations submitted as provided in this subsection by the Council, by any member of the Council, and by employee organizations not represented on the Council.

(f)

(1)The pay agent may provide for such pay localities as the pay agentconsiders appropriate, except that—

(A)

each General Schedule position in the United States, as defined under section 5921(4), and its territories and possessions, including the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands, shall be included within a pay locality; and

(B)

the boundaries of pay localities shall be determined based on appropriate factors which may include local labor market patterns, commuting patterns, and practices of other employers.

(2)

(A)

The establishment or modification of any such boundaries shall be effected by regulations which, notwithstanding subsection (a)(2) of section 553, shall be promulgated in accordance with the notice and comment requirements of such section.

(B)

Judicial review of any regulation under this subsection shall be limited to whether or not it was promulgated in accordance with the requirements referred to in subparagraph (A).

(g)

(1)

Except as provided in paragraph (2), comparability payments may not be paid at a rate which, when added to the rate of basic pay otherwise payable to the employee involved, would cause the total to exceed the rate of basic pay payable for level IV of the Executive Schedule.

(2)The applicable maximum under this subsection shall be level III of the Executive Schedule for—

(A)

positions under subparagraphs (A) and (B) of subsection (h)(1);

(B)

positions under subsection (h)(1)(C) not covered by appraisal systems certified under subsection 5307(d); and

(C)

any positions under subsection (h)(1)(D) as the President may determine.

(3)

The applicable maximum under this subsection shall be level II of the Executive Schedule for positions under subsection (h)(1)(C) covered by appraisal systems certified under section 5307(d).

(h)

(1)For the purpose of this subsection, the term “position” means—

(A)

a position to which section 5372 applies (relating to administrative law judges appointed under section 3105);

(B)

a position to which section 5372a applies (relating to contract appeals board members);

(C)

a Senior Executive Service position under section 3132 or 3151 or a senior level position under section 5376 stationed within the United States, but outside the 48 contiguous States and the District of Columbia in which the incumbent was an individual who on the day before the effective date of section 1912 of the Non-Foreign Area Retirement Equity Assurance Act of 2009 was eligible to receive a cost-of-living allowance under section 5941 and who thereafter has served continuously in an area in which such an allowance was payable; and

(D)

a position within an Executive agency not covered under the General Schedule or any of the preceding subparagraphs, the rate of basic pay for which is (or, but for this section, would be) no more than the rate payable for level IV of the Executive Schedule;

but does not include—

(i)

a position to which subchapter IV applies (relating to prevailing rate systems);

(ii)

a position as to which a rate of pay is authorized under section 5377 (relating to critical positions);

(iii)

a position to which subchapter II applies (relating to the Executive Schedule);

(iv)

a Senior Executive Service position under section 3132, except for a position covered by subparagraph (C);

(v)

a position in the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service under section 3151, except for a position covered by subparagraph (C);

(vi)

a position in a system equivalent to the system in clause (iv), as determined by the President’s Pay Agent designated under subsection (d); or

(vii)

a position to which section 5376 applies (relating to certain senior-level and scientific and professional positions), except for a positioncovered by subparagraph (C).

(2)

(A)

Notwithstanding subsection (c)(4) or any other provision of this section, but subject to subparagraph (B) and paragraph (3), upon the request of the head of an Executive agency with respect to 1 or more categories of positions, the President may provide that each employee of such agency who holds a position within such category, and within the particular locality involved, shall be entitled to receive comparability payments.

(B)A request by an agency head or exercise of authority by the President under subparagraph (A) shall cover—

(i)

with respect to the positions under subparagraphs (A) through (C) of paragraph (1), all positions described in the subparagraph or subparagraphs involved (excluding any under clause (i), (ii), (iii), (iv), (v), (vi), or (vii) of such paragraph); and

(ii)

with respect to positions under paragraph (1)(D), such positionsas may be considered appropriate (excluding any under clause (i), (ii), (iii), (iv), (v), (vi), or (vii) of paragraph (1)).

(C)

Notwithstanding subsection (c)(4) or any other provision of law, but subject to paragraph (3), in the case of a category with positions that are in more than 1 Executive agency, the President may, on his own initiative, provide that each employee who holds a position within such category, and in the locality involved, shall be entitled to receivecomparability payments. No later than 30 days before an employee receives comparability payments under this subparagraph, the President or the President’s designee shall submit a detailed report to the Congress justifying the reasons for the extension, including consideration of recruitment and retention rates and the expense of extending locality pay.

(3)Comparability payments under this subsection—

(A)

may be paid only in any calendar year in which comparability payments under the preceding provisions of this section are payable with respect to General Schedule positions within the same locality;

(B)

shall take effect, within the locality involved, on the first day of the first applicable pay period commencing on or after such date as the President designates (except that no date may be designated which would require any retroactive payments), and shall remain in effect through the last day of the last applicable pay period commencing during that calendar year;

(C)

shall be computed using the same percentage as is applicable, for the calendar year involved, with respect to General Schedule positions within the same locality; and

(D)

shall be subject to the applicable limitation under subsection (g).

(i)

The Office of Personnel Management may prescribe regulations, consistent with the provisions of this section, governing the payment of comparability payments to employees.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 459; Pub. L. 91–375, § 6(c)(11), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–465, title II, § 2314(c)(3), Oct. 17, 1980, 94 Stat. 2168; Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1431; Pub. L. 102–378, § 2(26), Oct. 2, 1992, 106 Stat. 1348; Pub. L. 108–136, div. A, title XI, § 1125(a)(1), Nov. 24, 2003, 117 Stat. 1638; Pub. L. 108–411, title III, § 302(a)(1), Oct. 30, 2004, 118 Stat. 2318; Pub. L. 110–372, § 2(a), Oct. 8, 2008, 122 Stat. 4043; Pub. L. 111–84, div. A, title XIX, § 1912(a), Oct. 28, 2009, 123 Stat. 2619.)

5 - 4 - 4 - 2 - 1 - 5 Authority to fix an alternative level of comparability payments

(a)If, because of national emergency or serious economic conditions affecting the general welfare, the President should consider the level of comparability payments which would otherwise be payable under section 5304 in any year to be inappropriate, the President shall—

(1)

prepare and transmit to Congress, at least 1 month before thosecomparability payments (disregarding this section) would otherwise become payable, a report describing the alternative level of payments which the President instead intends to provide, including the reasons why such alternative level is considered necessary; and

(2)

implement the alternative level of payments beginning on the same date as would otherwise apply, for the year involved, under section 5304.

(b)

The requirements set forth in paragraphs (2) and (3), respectively, of section 5303(b) shall apply with respect to any decision to exercise any authority to fix an alternative level of comparability payments under this section.

(Added Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1436.)

5 - 4 - 4 - 2 - 1 - 6 Special pay authority

(a)

(1)

Whenever the Office of Personnel Management finds that the Government’s recruitment or retention efforts with respect to 1 or more occupations in 1 or more areas or locations are, or are likely to become, significantly handicapped due to any of the circumstances described in subsection (b), the Office may establish for the areas or locations involved, with respect to individuals in positions paid under any of the pay systems referred to in subsection (c), higher minimum rates of pay for 1 or more grades or levels, occupational groups, series, classes, or subdivisions thereof, and may make corresponding increases in all rates of the pay range for each such grade or level. However, a minimum rate so established may not exceed the maximum rate of basic pay (excluding any locality-basedcomparability payment under section 5304 or similar provision of law) for the grade or level by more than 30 percent, and no rate may be established under this section in excess of the rate of basic pay payable for level IV of the Executive Schedule. In the case of individuals not subject to the provisions of this title governing appointment in the competitive service, the President may designate another agency to authorize special rates under this section.

(2)

The head of an agency may determine that a category of employees of the agency will not be covered by a special rate authorization established under this section. The head of an agency shall provide written notice to the Office of Personnel Management (or other agency designated by the President to authorize special rates under the last sentence of paragraph (1)) which identifies the specific category or categories of employees that will not be covered by special rates authorized under this section. If the head of an agency removes a category of employees from coverage under a special rate authorization after that authorization takes effect, the loss of coverage will take effect on the first day of the first pay period after the date of the notice.

(b)The circumstances referred to in subsection (a) are—

(1)

rates of pay offered by non-Federal employers being significantly higher than those payable by the Government within the area, location, occupational group, or other class of positions under the pay system involved;

(2)

the remoteness of the area or location involved;

(3)

the undesirability of the working conditions or the nature of the work involved (including exposure to toxic substances or other occupational hazards); or

(4)

any other circumstances which the Office of Personnel Management (or such other agency as the President may under the last sentence of subsection (a)(1) designate) considers appropriate.

(c)Authority under subsection (a) may be exercised with respect to positions paid under—

(1)

a statutory pay system; or

(2)

any other pay system established by or under Federal statute for civilian positions within the executive branch.

(d)

Within the limitations applicable under the preceding provisions of this section, rates of pay established under this section may be revised from time to time by the Office of Personnel Management (or by such other agency as the President may designate under the last sentence of subsection (a)(1)). The actions and revisions have the force and effect of statute.

(e)

An increase in a rate of pay established under this section is not an equivalent increase in pay within the meaning of section 5335.

(f)

When a schedule of special rates established under this section is adjusted under subsection (d), a covered employee’s special rate will be adjusted in accordance with conversion rules prescribed by the Office of Personnel Management (or by such other agency as the President may under the last sentence of subsection (a)(1) designate).

(g)

(1)

The benefit of any comparability payments under section 5304 shall be available to individuals receiving rates of pay established under this section to such extent as the Office of Personnel Management (or such other agency as the President may under the last sentence of subsection (a)(1) designate) considers appropriate, subject to paragraph (2) and subsection (h).

(2)

Payments under this subsection may not be made if, or to the extent that, when added to basic pay otherwise payable, such payments would cause the total to exceed the rate of basic pay payable for level IV of the Executive Schedule.

(h)

An employee shall not for any purpose be considered to be entitled to a rate of pay established under this section with respect to any period for which such employee is entitled to a higher rate of basic pay under any other provision of law. For purposes of this subsection, the term “basic pay” includes any applicablelocality-based comparability payment under section 5304 or similar provision of law.

(i)If an employee who is receiving a rate of pay under this section becomes subject, by virtue of moving to a new official duty station, to a different pay schedule, such employee’s new rate of pay shall be initially established under conversion rules prescribed by the Office of Personnel Management (or such other agency as the President may under the last sentence of subsection (a)(1) designate) in conformance with the following:

(1)

First, determine the rate of pay to which such employee would be entitled at the new official duty station based on such employee’s position, grade, and step (or relative position in the rate range) before the move.

(2)

Then, if (in addition to the change in pay schedule) the move also involves any personnel action or other change requiring a rate adjustment under any other provision of law, rule, or regulation, apply the applicable rate adjustment provisions, treating the rate determined under paragraph (1) as if it were the rate last received by the employee before the rate adjustment.

(j)

A rate determined under a schedule of special rates established under this section shall be considered to be part of basic pay for purposes of subchapter III of chapter 83, chapter 84, chapter 87, subchapter V of chapter 55, and section 5941, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe.

(Added Pub. L. 91–656, § 3(a), Jan. 8, 1971, 84 Stat. 1946; amended Pub. L. 94–82, title II, § 202(c), Aug. 9, 1975, 89 Stat. 420; Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1436; Pub. L. 108–411, title III, § 301(a)(2), Oct. 30, 2004, 118 Stat. 2313.)

5 - 4 - 4 - 2 - 1 - 7 Pay fixed by administrative action

(a)Notwithstanding sections 1341, 1342, and 1349–1351 and subchapter II of chapter 15 of title 31—

(1)the rates of pay of—

(A)

employees in the legislative, executive, and judicial branches of the Government of the United States (except employees whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives) and of the government of the District of Columbia, whose rates of pay are fixed by administrative action under law and are not otherwise adjusted under this subchapter;

(B)

employees under the Architect of the Capitol, whose rates of pay are fixed under section 166b–3a [1] of title 40, and the Superintendent of Garages, House office buildings; and

(C)

persons employed by the county committees established under section 590h(b) of title 16; and

(2)

and minimum or maximum rate of pay (other than a maximum rate equal to or greater than the maximum rate then currently being paid under the General Schedule as a result of a pay adjustment under section 5303 (or prior corresponding provision of law)), and any monetary limitation on or monetary allowance for pay, applicable to employees described in subparagraphs (A), (B), and (C) of paragraph (1);

may be adjusted, by the appropriate authority concerned, effective at the beginning of the first applicable pay period commencing on or after the day on which a pay adjustment becomes effective under section 5303 (or prior provision of law), by whichever of the following methods the appropriate authority concerned considers appropriate—

(i)

by an amount or amounts not in excess of the pay adjustment provided under section 5303 for corresponding rates of pay in the appropriate schedule or scale of pay;

(ii)

if there are no corresponding rates of pay, by an amount or amounts equal or equivalent, insofar as practicable and with such exceptions and modifications as may be necessary to provide for appropriate pay relationships between positions, to the amount of the pay adjustment provided under section 5303; or

(iii)

in the case of minimum or maximum rates of pay, or monetary limitations of allowances with respect to pay, by an amount rounded to the nearest $100 and computed on the basis of a percentage equal or equivalent, insofar as practicable and with such variations as may be appropriate, to the percentage of the pay adjustment provided under section 5303.

(b)

An adjustment under subsection (a) in rates of pay, minimum or maximum rates of pay, the monetary limitations or allowances with respect to pay, shall be made in such manner as the appropriate authority concerned considers appropriate.

(c)

This section does not authorize any adjustment in the rates of pay of employees whose rates of pay are fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates or practices.

(d)

This section does not impair any authority under which rates of pay may be fixed by administrative action.

(e)

Pay may not be paid, by reason of any exercise of authority under this section, at a rate in excess of the rate of basic pay payable for level V of the Executive Schedule.

(Added Pub. L. 91–656, § 3(a), Jan. 8, 1971, 84 Stat. 1949; amended Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1437; Pub. L. 102–378, § 2(27), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 104–186, title II, § 215(3), Aug. 20, 1996, 110 Stat. 1745.)

5 - 4 - 4 - 2 - 1 - 8 Limitation on certain payments

(a)

(1)

Except as otherwise permitted by or under law, or as otherwise provided under subsection (d), no allowance, differential, bonus, award, or other similar cash payment under this title may be paid to an employee in a calendar year if, or to the extent that, when added to the total basic pay paid or payable to such employee for service performed in such calendar year as an employee in the executive branch (or as an employee outside the executive branch to whom chapter 51 applies), such payment would cause the total to exceed the annual rate of basic pay payable for level I of the Executive Schedule, as of the end of such calendar year.

(2)This section shall not apply to any payment under—

(A)

subchapter III or VII of chapter 55 or section 5596;

(B)

chapter 57 (other than section 5753, 5754, 5755, or 5757); [1] or

(C)

chapter 59 (other than section 5925, 5928, 5941(a)(2), or 5948).

(b)

(1)

Any amount which is not paid to an employee in a calendar year because of the limitation under subsection (a) shall be paid to such employee in a lump sum at the beginning of the following calendar year.

(2)

Any amount paid under this subsection in a calendar year shall be taken into account for purposes of appying [2] the limitations under subsection (a) with respect to such calendar year.

(c)

The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out this section (subject to subsection (d)), including regulations (consistent with section 5582) concerning how a lump-sum payment under subsection (b) shall be made with respect to any employee who dies before an amount payable to such employee under subsection (b) is made.

(d)

(1)Notwithstanding any other provision of this section, subsection (a)(1) shall be applied by substituting “the total annual compensation payable to the Vice President under section 104 of title 3” for “the annual rate of basic pay payable for level I of the Executive Schedule” in the case of any employee who—

(A)

is paid under section 5376 or 5383 of this title, section 332(f), 603, or 604 of title 28, or section 108 of the Legislative Branch Appropriations Act, 1991 (2 U.S.C. 1849); and

(B)

holds a position in or under an agency which is described in paragraph (2).

(2)

An agency described in this paragraph is any agency which, for purposes of applying the limitation in the calendar year involved, has a performance appraisal system certified under this subsection as making, in its design and application, meaningful distinctions based on relative performance.

(3)

(A)

The Office of Personnel Management and the Office of Management and Budget jointly shall promulgate such regulations as may be necessary to carry out this subsection, including the criteria and procedures in accordance with which any determinations under this subsection shall be made.

(B)

The certification of an agency performance appraisal system under this subsection shall be for a period not to exceed 24 months beginning on the date of certification, unless extended by the Director of the Office of Personnel Management for up to 6 additional months, except that such certification may be terminated at any time upon a finding that the actions of such agency have not remained in conformance with applicable requirements.

(C)

Any certification or decertification under this subsection shall be made by the Office of Personnel Management, with the concurrence of the Office of Management and Budget.

(4)

Notwithstanding any provision of paragraph (3), any regulations, certifications, or other measures necessary to carry out this subsection with respect to employees within the judicial branch shall be the responsibility of the Director of the Administrative Office of the United States Courts. However, the regulations under this paragraph shall be consistent with those promulgated under paragraph (3).

(5)

(A)Notwithstanding any provision of paragraph (3), any regulations, certifications, or other measures necessary to carry out this subsection—

(i)

with respect to employees of the Library of Congress shall be the responsibility of the Librarian of Congress;

(ii)

with respect to employees of the Office of the Architect of the Capitol shall be the responsibility of the Architect of the Capitol; and

(iii)

with respect to employees of the Government Publishing Office shall be the responsibility of the Director of the Government Publishing Office.

(B)

The regulations under this paragraph shall be consistent with those promulgated under paragraph (3).

(Added Pub. L. 91–656, § 3(a), Jan. 8, 1971, 84 Stat. 1950; amended Pub. L. 97–258, § 3(a)(10), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 101–509, title V, § 529 [title I, § 101(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1438; Pub. L. 102–77, § 2, July 26, 1991, 105 Stat. 369; Pub. L. 107–273, div. A, title II, § 207(b), Nov. 2, 2002, 116 Stat. 1780; Pub. L. 107–296, title XIII, § 1322, Nov. 25, 2002, 116 Stat. 2297; Pub. L. 110–372, § 3(a), Oct. 8, 2008, 122 Stat. 4045; Pub. L. 114–113, div. I, title II, § 210(a), Dec. 18, 2015, 129 Stat. 2674.)

5 - 4 - 4 - 2 - 2 EXECUTIVE SCHEDULE PAY RATES (§§ 5311 to 5318)

5 - 4 - 4 - 2 - 2 - 1 Executive Schedule

The Executive Schedule, which is divided into five pay levels, is the basic pay schedule for positions, other than Senior Executive Service positions and positions in the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, to which this subchapter applies.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 459; Pub. L. 95–454, title IV, §§ 408(b)(1), 414(b)(1), Oct. 13, 1978, 92 Stat. 1173, 1178; Pub. L. 96–54, § 2(a)(24), Aug. 14, 1979, 93 Stat. 382; Pub. L. 100–325, § 2(h)(1), (2), May 30, 1988, 102 Stat. 582; Pub. L. 101–509, title V, § 529 [title I, § 104(c)], Nov. 5, 1990, 104 Stat. 1427, 1447.)

5 - 4 - 4 - 2 - 2 - 2 Positions at level I

Level I of the Executive Schedule applies to the following positions for which the annual rate of basic pay shall be the rate determined with respect to such level under chapter 11 of title 2, as adjusted by section 5318 of this title:

Secretary of State.

Secretary of the Treasury.

Secretary of Defense.

Attorney General.

Secretary of the Interior.

Secretary of Agriculture.

Secretary of Commerce.

Secretary of Labor.

Secretary of Health and Human Services.

Secretary of Housing and Urban Development.

Secretary of Transportation.

United States Trade Representative.

Secretary of Energy.

Secretary of Education.

Secretary of Veterans Affairs.

Secretary of Homeland Security.

Director of the Office of Management and Budget.

Commissioner of Social Security, Social Security Administration.

Director of National Drug Control Policy.

Chairman, Board of Governors of the Federal Reserve System.

Director of National Intelligence.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 460; Pub. L. 89–670, § 10(d)(1), Oct. 15, 1966, 80 Stat. 948; Pub. L. 91–375, § 6(c)(12), Aug. 12, 1970, 84 Stat. 776; Pub. L. 93–618, title I, § 141(b)(3)(A), Jan. 3, 1975, 88 Stat. 1999; Pub. L. 94–82, title II, § 202(b)(1), Aug. 9, 1975, 89 Stat. 419; Pub. L. 95–91, title VII, § 710(c), Aug. 4, 1977, 91 Stat. 609; Pub. L. 96–54, § 2(a)(25)(A), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–88, title V, § 508(c), (g), Oct. 17, 1979, 93 Stat. 692; Pub. L. 97–456, § 3(d)(1), (5), Jan. 12, 1983, 96 Stat. 2505; Pub. L. 99–198, title XI, § 1113(d), Dec. 23, 1985, 99 Stat. 1480; Pub. L. 99–260, § 4(c), Mar. 20, 1986, 100 Stat. 49; Pub. L. 100–527, § 13(c), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 100–679, § 11(a), Nov. 17, 1988, 102 Stat. 4070; Pub. L. 100–690, title I, § 1003(a)(4)(A), Nov. 18, 1988, 102 Stat. 4182; Pub. L. 103–296, title I, § 108(e)(1), Aug. 15, 1994, 108 Stat. 1486; Pub. L. 105–277, div. C, title VII, § 713(a)(1), Oct. 21, 1998, 112 Stat. 2681–693; Pub. L. 106–569, title X, § 1002(a)(1), Dec. 27, 2000, 114 Stat. 3028; Pub. L. 107–296, title XVII, § 1702(a)(1), Nov. 25, 2002, 116 Stat. 2313; Pub. L. 108–458, title I, § 1015(a), Dec. 17, 2004, 118 Stat. 3664.)

5 - 4 - 4 - 2 - 2 - 3 Positions at level II

Level II of the Executive Schedule applies to the following positions, for which the annual rate of basic pay shall be the rate determined with respect to such level under chapter 11 of title 2, as adjusted by section 5318 of this title:

Deputy Secretary of Defense.

Deputy Secretary of State.

Deputy Secretary of State for Management and Resources.

Administrator, Agency for International Development.

Administrator of the National Aeronautics and Space Administration.

Deputy Secretary of Veterans Affairs.

Deputy Secretary of Homeland Security.

Under Secretary of Homeland Security for Management.

Administrator of the Transportation Security Administration.

Director, Cybersecurity and Infrastructure Security Agency.

Deputy Secretary of the Treasury.

Deputy Secretary of Transportation.

Chairman, Nuclear Regulatory Commission.

Chairman, Council of Economic Advisers.

Director of the Office of Science and Technology.

Director of the Central Intelligence Agency.

Secretary of the Air Force.

Secretary of the Army.

Secretary of the Navy.

Administrator, Federal Aviation Administration.

Director of the National Science Foundation.

Deputy Attorney General.

Deputy Secretary of Energy.

Deputy Secretary of Agriculture.

Director of the Office of Personnel Management.

Administrator, Federal Highway Administration.

Administrator of the Environmental Protection Agency.

Deputy Secretary of Labor.

Deputy Director of the Office of Management and Budget.

Independent Members, Thrift Depositor Protection Oversight Board.

Deputy Secretary of Health and Human Services.

Deputy Secretary of the Interior.

Deputy Secretary of Education.

Deputy Secretary of Housing and Urban Development.

Deputy Director for Management, Office of Management and Budget.

Director of the Federal Housing Finance Agency.

Deputy Commissioner of Social Security, Social Security Administration.

Administrator of the Community Development Financial Institutions Fund.

Deputy Director of National Drug Control Policy.

Members, Board of Governors of the Federal Reserve System.

Under Secretary of Transportation for Policy.

Chief Executive Officer, Millennium Challenge Corporation.

Principal Deputy Director of National Intelligence.

Director of the National Counterterrorism Center.

Administrator of the Federal Emergency Management Agency.

Federal Transit Administrator.

Chief Executive Officer, United States International Development Finance Corporation.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 460; Pub. L. 89–670, § 10(d)(2), Oct. 15, 1966, 80 Stat. 948; Pub. L. 90–83, § 1(13), Sept. 11, 1967, 81 Stat. 198; Pub. L. 90–407, § 15(a)(1), July 18, 1968, 82 Stat. 366; Pub. L. 91–644, title I, § 8(b), Jan. 2, 1971, 84 Stat. 1888; Pub. L. 92–255, title II, § 212(a), Mar. 21, 1972, 86 Stat. 69; Pub. L. 92–302, § 2(a), May 18, 1972, 86 Stat. 149; Pub. L. 92–352, title I, § 104(1), July 13, 1972, 86 Stat. 490; Pub. L. 92–596, § 6, Oct. 27, 1972, 86 Stat. 1318; Pub. L. 93–438, title III, § 310(1), Oct. 11, 1974, 88 Stat. 1252; Pub. L. 93–496, § 16(c), Oct. 28, 1974, 88 Stat. 1533; Pub. L. 94–82, title II, § 202(b)(2), Aug. 9, 1975, 89 Stat. 419; Pub. L. 94–237, § 4(c)(6), Mar. 19, 1976, 90 Stat. 244; Pub. L. 94–561, § 1(a), Oct. 19, 1976, 90 Stat. 2643; Pub. L. 95–91, title VII, § 710(d), Aug. 4, 1977, 91 Stat. 609; Pub. L. 95–140, § 3(d)(1), Oct. 21, 1977, 91 Stat. 1173; Pub. L. 95–454, title II, § 201(b)(1), Oct. 13, 1978, 92 Stat. 1121; Pub. L. 96–54, § 2(a)(25)(A), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–465, title II, § 2302, Oct. 17, 1980, 94 Stat. 2164; Pub. L. 97–449, §§ 3(1), 7(b), Jan. 12, 1983, 96 Stat. 2441, 2444; Pub. L. 98–80, § 2(a)(1), Aug. 23, 1983, 97 Stat. 485; Pub. L. 98–216, § 3(a)(1), Feb. 14, 1984, 98 Stat. 6; Pub. L. 99–348, title V, § 501(d)(1), July 1, 1986, 100 Stat. 708; Pub. L. 99–619, § 2(a)(2), Nov. 6, 1986, 100 Stat. 3491; Pub. L. 100–204, title I, § 178(a)(1), Dec. 22, 1987, 101 Stat. 1362; Pub. L. 100–527, § 13(d), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 100–679, § 11(b), Nov. 17, 1988, 102 Stat. 4070; Pub. L. 101–73, title V, § 501(c), Aug. 9, 1989, 103 Stat. 394; Pub. L. 101–509, title V, § 529 [title I, § 112(b)], Nov. 5, 1990, 104 Stat. 1427, 1454; Pub. L. 101–576, title II, § 207(a), Nov. 15, 1990, 104 Stat. 2846; Pub. L. 102–233, title III, § 315(b), Dec. 12, 1991, 105 Stat. 1772; Pub. L. 102–550, title XIII, § 1351(a), Oct. 28, 1992, 106 Stat. 3969; Pub. L. 103–160, div. A, title IX, § 904(e)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103–296, title I, § 108(e)(2), Aug. 15, 1994, 108 Stat. 1486; Pub. L. 103–325, title I, § 104(i), Sept. 23, 1994, 108 Stat. 2169; Pub. L. 105–277, div. C, title VII, § 713(a)(2), div. G, subdiv. A, title XII, § 1224(1), title XIII, § 1332(1), Oct. 21, 1998, 112 Stat. 2681–693, 2681–772, 2681–785; Pub. L. 106–65, div. A, title IX, § 911(e), Oct. 5, 1999, 113 Stat. 719; Pub. L. 106–553, § 1(a)(2) [title IV, § 404(b)], Dec. 21, 2000, 114 Stat. 2762, 2762A–96; Pub. L. 106–569, title X, § 1002(a)(2), Dec. 27, 2000, 114 Stat. 3028; Pub. L. 107–71, title I, § 101(c)(1), Nov. 19, 2001, 115 Stat. 602; Pub. L. 107–295, title II, § 215(b), Nov. 25, 2002, 116 Stat. 2102; Pub. L. 107–296, title XVII, § 1702(a)(2), Nov. 25, 2002, 116 Stat. 2313; Pub. L. 108–199, div. D, title VI, § 604(b)(4)(B), Jan. 23, 2004, 118 Stat. 212; Pub. L. 108–458, title I, § 1015(b), Dec. 17, 2004, 118 Stat. 3664; Pub. L. 109–295, title VI, § 612(a)(1), Oct. 4, 2006, 120 Stat. 1410; Pub. L. 110–53, title XXIV, § 2405(e), Aug. 3, 2007, 121 Stat. 550; Pub. L. 110–289, div. A, title I, § 1161(g)(1), July 30, 2008, 122 Stat. 2780; Pub. L. 111–259, title VIII, § 807(a), Oct. 7, 2010, 124 Stat. 2749; Pub. L. 113–291, div. A, title IX, § 901(m)(1), Dec. 19, 2014, 128 Stat. 3468; Pub. L. 114–94, div. A, title III, § 3029(a), title VI, § 6011(d)(1)(A), Dec. 4, 2015, 129 Stat. 1496, 1569; Pub. L. 114–328, div. A, title IX, § 901(h), Dec. 23, 2016, 130 Stat. 2342; Pub. L. 115–31, div. N, title III, § 312, May 5, 2017, 131 Stat. 816; Pub. L. 115–91, div. A, title IX, §§ 903(a), 910(d), title X, § 1081(b)(1)(C), Dec. 12, 2017, 131 Stat. 1512, 1518, 1597; Pub. L. 115–254, div. F, title I, § 1413(d)(4), div. K, title I, § 1904(c)(1)(A), Oct. 5, 2018, 132 Stat. 3489, 3546; Pub. L. 116–92, div. A, title IX, § 902(93)(B), Dec. 20, 2019, 133 Stat. 1554; Pub. L. 116–283, div. A, title IX, § 901(a)(2)(B), div. H, title XC, § 9001(b)(1), Jan. 1, 2021, 134 Stat. 3794, 4766.)

5 - 4 - 4 - 2 - 2 - 4 Positions at level III

Level III of the Executive Schedule applies to the following positions, for which the annual rate of basic pay shall be the rate determined with respect to such level under chapter 11 of title 2, as adjusted by section 5318 of this title:

Solicitor General of the United States.

Under Secretary of Commerce, Under Secretary of Commerce for Economic Affairs, Under Secretary of Commerce for Industry and Security, Under Secretary of Commerce for Travel and Tourism, and Under Secretary of Commerce for Minority Business Development.

Under Secretaries of State (6).

Under Secretaries of the Treasury (3).

Administrator of General Services.

Administrator of the Small Business Administration.

Deputy Administrator, Agency for International Development.

Chairman of the Merit Systems Protection Board.

Chairman, Federal Communications Commission.

Chairman, Board of Directors, Federal Deposit Insurance Corporation.

Chairman, Federal Energy Regulatory Commission.

Chairman, Federal Trade Commission.

Chairman, Surface Transportation Board.

Chairman, National Labor Relations Board.

Chairman, Securities and Exchange Commission.

Chairman, National Mediation Board.

Chairman, Railroad Retirement Board.

Chairman, Federal Maritime Commission.

Comptroller of the Currency.

Commissioner of Internal Revenue.

Under Secretary of Defense for Research and Engineering.

Under Secretary of Defense for Acquisition and Sustainment.

Under Secretary of Defense for Policy.

Under Secretary of Defense (Comptroller).

Under Secretary of Defense for Personnel and Readiness.

Under Secretary of Defense for Intelligence and Security.

Under Secretary of the Air Force.

Under Secretary of the Army.

Under Secretary of the Navy.

Deputy Administrator of the National Aeronautics and Space Administration.

Deputy Director of the Central Intelligence Agency.

Director of the Office of Emergency Planning.

Director of the Peace Corps.

Deputy Director, National Science Foundation.

President of the Export-Import Bank of Washington.

Members, Nuclear Regulatory Commission.

Members, Defense Nuclear Facilities Safety Board.

Director of the Federal Bureau of Investigation, Department of Justice.

Administrator of the National Highway Traffic Safety Administration.

Administrator of the Federal Motor Carrier Safety Administration.

Administrator, Federal Railroad Administration.

Chairman, National Transportation Safety Board.

Chairman of the National Endowment for the Arts the incumbent of which also serves as Chairman of the National Council on the Arts.

Chairman of the National Endowment for the Humanities.

Director of the Federal Mediation and Conciliation Service.

Chairman, Postal Regulatory Commission.

Chairman, Occupational Safety and Health Review Commission.

Governor of the Farm Credit Administration.

Chairman, Equal Employment Opportunity Commission.

Chairman, Consumer Product Safety Commission.

Under Secretaries of Energy (3).

Chairman, Commodity Futures Trading Commission.

Deputy United States Trade Representatives (3).

Chief Agricultural Negotiator, Office of the United States Trade Representative.

Chief Innovation and Intellectual Property Negotiator, Office of the United States Trade Representative.

Chairman, United States International Trade Commission.

Under Secretary of Commerce for Oceans and Atmosphere, the incumbent of which also serves as Administrator of the National Oceanic and Atmospheric Administration.

Under Secretary of Commerce for Standards and Technology, who also serves as Director of the National Institute of Standards and Technology.

Associate Attorney General.

Chairman, Federal Mine Safety and Health Review Commission.

Chairman, National Credit Union Administration Board.

Deputy Director of the Office of Personnel Management.

Under Secretary of Agriculture for Farm Production and Conservation.

Under Secretary of Agriculture for Trade and Foreign Agricultural Affairs.

Under Secretary of Agriculture for Food, Nutrition, and Consumer Services.

Under Secretary of Agriculture for Natural Resources and Environment.

Under Secretary of Agriculture for Research, Education, and Economics.

Under Secretary of Agriculture for Food Safety.

Under Secretary of Agriculture for Marketing and Regulatory Programs.

Director, Institute for Scientific and Technological Cooperation.

Under Secretary of Agriculture for Rural Development.

Administrator, Maritime Administration.

Executive Director Property Review Board.

Deputy Administrator of the Environmental Protection Agency.

Archivist of the United States.

Executive Director, Federal Retirement Thrift Investment Board.

Principal Deputy Under Secretary of Defense for Acquisition, Technology, and Logistics.[1]

Director, Trade and Development Agency.

Under Secretary for Health, Department of Veterans Affairs.

Under Secretary for Benefits, Department of Veterans Affairs.

Under Secretary for Memorial Affairs, Department of Veterans Affairs.

Under Secretaries, Department of Homeland Security.

Director of the Bureau of Citizenship and Immigration Services.

Director of the Office of Government Ethics.

Administrator for Federal Procurement Policy.

Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget.

Director of the Office of Thrift Supervision.

Chairperson of the Federal Housing Finance Board.

Executive Secretary, National Space Council.

Controller, Office of Federal Financial Management, Office of Management and Budget.

Administrator, Office of the Assistant Secretary for Research and Technology of the Department of Transportation.

Deputy Director for Demand Reduction, Office of National Drug Control Policy.

Deputy Director for Supply Reduction, Office of National Drug Control Policy.

Deputy Director for State and Local Affairs, Office of National Drug Control Policy.

Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

Commissioner of U.S. Customs and Border Protection, Department of Homeland Security.

Under Secretary of Education [2]

Administrator of the Centers for Medicare & Medicaid Services.

Administrator of the Office of Electronic Government.

Administrator, Pipeline and Hazardous Materials Safety Administration.

Director, Pension Benefit Guaranty Corporation.

Deputy Administrators, Federal Emergency Management Agency.

Deputy Administrator, Transportation Security Administration.

Chief Executive Officer, International Clean Energy Foundation.

Independent Member of the Financial Stability Oversight Council (1).

Director of the Office of Financial Research.

Director of the National Reconnaissance Office.

Special Counsel of the Office of Special Counsel.

5 - 4 - 4 - 2 - 2 - 5 Positions at level IV

Level IV of the Executive Schedule applies to the following positions, for which the annual rate of basic pay shall be the rate determined with respect to such level under chapter 11 of title 2, as adjusted by section 5318 of this title:

Deputy Administrator of General Services.

Associate Administrator of the National Aeronautics and Space Administration.

Assistant Administrators, Agency for International Development (6).

Regional Assistant Administrators, Agency for International Development (4).

Assistant Secretaries of Agriculture (3).

Assistant Secretaries of Commerce (11).

Assistant Secretaries of Defense (19).

Assistant Secretaries of the Air Force (5).

Assistant Secretaries of the Army (5).

Assistant Secretaries of the Navy (4).

Assistant Secretaries of Health and Human Services (6).

Assistant Secretaries of the Interior (6).

Assistant Attorneys General (11).

Assistant Secretaries of Labor (10), one of whom shall be the Assistant Secretary of Labor for Veterans’ Employment and Training.

Administrator, Wage and Hour Division, Department of Labor.

Assistant Secretaries of State (24) and 4 other State Department officials to be appointed by the President, by and with the advice and consent of the Senate.

Assistant Secretaries of the Treasury (10).

Members, United States International Trade Commission (5).

Assistant Secretaries of Education (10).

General Counsel, Department of Education.

Director of Civil Defense, Department of the Army.

Deputy Director of the Office of Emergency Planning.

Deputy Director of the Office of Science and Technology.

Deputy Director of the Peace Corps.

Assistant Directors of the Office of Management and Budget (3).

General Counsel of the Department of Agriculture.

General Counsel of the Department of Commerce.

General Counsel of the Department of Defense.

General Counsel of the Department of Health and Human Services.

Solicitor of the Department of the Interior.

Solicitor of the Department of Labor.

General Counsel of the National Labor Relations Board.

General Counsel of the Department of the Treasury.

First Vice President of the Export-Import Bank of Washington.

Members, Council of Economic Advisers.

Members, Board of Directors of the Export-Import Bank of Washington.

Members, Federal Communications Commission.

Member, Board of Directors of the Federal Deposit Insurance Corporation.

Directors, Federal Housing Finance Board.

Members, Federal Energy Regulatory Commission.

Members, Federal Trade Commission.

Members, Surface Transportation Board.

Members, National Labor Relations Board.

Members, Securities and Exchange Commission.

Members, Merit Systems Protection Board.

Members, Federal Maritime Commission.

Members, National Mediation Board.

Members, Railroad Retirement Board.

Director of Selective Service.

Associate Director of the Federal Bureau of Investigation, Department of Justice.

Members, Equal Employment Opportunity Commission (4).

Director, Community Relations Service.

Members, National Transportation Safety Board.

General Counsel, Department of Transportation.

Deputy Administrator, Federal Aviation Administration.

Assistant Secretaries of Transportation (5).

Deputy Federal Highway Administrator.

Administrator of the Great Lakes St. Lawrence Seaway Development Corporation.

Assistant Secretary for Science, Smithsonian Institution.

Assistant Secretary for History and Art, Smithsonian Institution.

Deputy Administrator of the Small Business Administration.

Assistant Secretaries of Housing and Urban Development (8).

General Counsel of the Department of Housing and Urban Development.

Commissioner of Interama.

Federal Insurance Administrator, Federal Emergency Management Agency.

Members, National Credit Union Administration Board (2).

Members, Postal Regulatory Commission (4).

Members, Occupational Safety and Health Review Commission.

Deputy Under Secretaries of the Treasury (or Assistant Secretaries of the Treasury) (2).

Members, Consumer Product Safety Commission (4).

Members, Commodity Futures Trading Commission.

Director of Nuclear Reactor Regulation, Nuclear Regulatory Commission.

Director of Nuclear Material Safety and Safeguards, Nuclear Regulatory Commission.

Director of Nuclear Regulatory Research, Nuclear Regulatory Commission.

Executive Director for Operations, Nuclear Regulatory Commission.

President, Government National Mortgage Association, Department of Housing and Urban Development.

Assistant Secretary of Commerce for Oceans and Atmosphere, the incumbent of which also serves as Deputy Administrator of the National Oceanic and Atmospheric Administration.

Director, Bureau of Prisons, Department of Justice.

Assistant Secretaries of Energy (8).

General Counsel of the Department of Energy.

Administrator, Economic Regulatory Administration, Department of Energy.

Administrator, Energy Information Administration, Department of Energy.

Director, Office of Indian Energy Policy and Programs, Department of Energy.

Director, Office of Science, Department of Energy.

Assistant Secretary of Labor for Mine Safety and Health.

Members, Federal Mine Safety and Health Review Commission.

President, National Consumer Cooperative Bank.

Chairman, Federal Labor Relations Authority.

Assistant Secretaries, Department of Homeland Security.

Assistant Director for Cybersecurity, Cybersecurity and Infrastructure Security Agency.

Assistant Director for Infrastructure Security, Cybersecurity and Infrastructure Security Agency.

General Counsel, Department of Homeland Security.

Officer for Civil Rights and Civil Liberties, Department of Homeland Security.

Chief Financial Officer, Department of Homeland Security.

Chief Information Officer, Department of Homeland Security.

Deputy Director, Institute for Scientific and Technological Cooperation.

Director of the National Institute of Justice.

Director of the Bureau of Justice Statistics.

Chief Counsel for Advocacy, Small Business Administration.

Assistant Administrator for Toxic Substances, Environmental Protection Agency.

Assistant Administrator, Office of Solid Waste, Environmental Protection Agency.

Assistant Administrators, Environmental Protection Agency (8).

Director of Operational Test and Evaluation, Department of Defense.

Director of Cost Assessment and Program Evaluation, Department of Defense.

Special Representatives of the President for arms control, nonproliferation, and disarmament matters, Department of State.

Ambassadors at Large.

Assistant Secretary of Commerce and Director General of the United States and Foreign Commercial Service.

Assistant Secretaries, Department of Veterans Affairs (7).

General Counsel, Department of Veterans Affairs.

Commissioner of Food and Drugs, Department of Health and Human Services [1]

Chairman, Board of Veterans’ Appeals.

Administrator, Office of Juvenile Justice and Delinquency Prevention.

Director, United States Marshals Service.

Chairman, United States Parole Commission.

Director, Bureau of the Census, Department of Commerce.

Director of the Institute of Museum and Library Services.

Chief Financial Officer, Department of Agriculture.

Chief Financial Officer, Department of Commerce.

Chief Financial Officer, Department of Education.

Chief Financial Officer, Department of Energy.

Chief Financial Officer, Department of Health and Human Services.

Chief Financial Officer, Department of Housing and Urban Development.

Chief Financial Officer, Department of the Interior.

Chief Financial Officer, Department of Justice.

Chief Financial Officer, Department of Labor.

Chief Financial Officer, Department of State.

Chief Financial Officer, Department of Transportation.

Chief Financial Officer, Department of the Treasury.

Chief Financial Officer, Department of Veterans Affairs.

Chief Financial Officer, Environmental Protection Agency.

Chief Financial Officer, National Aeronautics and Space Administration.

Commissioner, Office of Navajo and Hopi Indian Relocation.

Deputy Under Secretary of Defense for Research and Engineering.

Deputy Under Secretary of Defense for Acquisition and Sustainment.

Deputy Under Secretary of Defense for Policy.

Deputy Under Secretary of Defense for Personnel and Readiness.

Deputy Under Secretary of Defense (Comptroller).

Deputy Under Secretary of Defense for Intelligence and Security.

General Counsel of the Department of the Army.

General Counsel of the Department of the Navy.

General Counsel of the Department of the Air Force.

Liaison for Community and Junior Colleges, Department of Education.

Director of the Office of Educational Technology.

Director of the International Broadcasting Bureau.

The [2] Commissioner of Labor Statistics, Department of Labor.

Chief Information Officer, Department of Agriculture.

Chief Information Officer, Department of Commerce.

Chief Information Officer, Department of Defense (unless the official designated as the Chief Information Officer of the Department of Defense is an official listed under section 5312, 5313, or 5314 of this title).

Chief Information Officer, Department of Education.

Chief Information Officer, Department of Energy.

Chief Information Officer, Department of Health and Human Services.

Chief Information Officer, Department of Housing and Urban Development.

Chief Information Officer, Department of the Interior.

Chief Information Officer, Department of Justice.

Chief Information Officer, Department of Labor.

Chief Information Officer, Department of State.

Chief Information Officer, Department of Transportation.

Chief Information Officer, Department of the Treasury.

Chief Information Officer, Department of Veterans Affairs.

Chief Information Officer, Environmental Protection Agency.

Chief Information Officer, National Aeronautics and Space Administration.

Chief Information Officer, Agency for International Development.

Chief Information Officer, Federal Emergency Management Agency.

Chief Information Officer, General Services Administration.

Chief Information Officer, National Science Foundation.

Chief Information Officer, Nuclear Regulatory Agency.

Chief Information Officer, Office of Personnel Management.

Chief Information Officer, Small Business Administration.

General Counsel of the Central Intelligence Agency.

Principal Deputy Administrator, National Nuclear Security Administration.

Additional Deputy Administrators of the National Nuclear Security Administration (3), but if the Deputy Administrator for Naval Reactors is an officer of the Navy on active duty, (2).

Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office.

General Counsel of the Office of the Director of National Intelligence.

Chief Medical Officer, Department of Homeland Security.

Director of the National Counterintelligence and Security Center.

5 - 4 - 4 - 2 - 2 - 6 Positions at level V

Level V of the Executive Schedule applies to the following positions, for which the annual rate of basic pay shall be the rate determined with respect to such level under chapter 11 of title 2, as adjusted by section 5318 of this title:

Administrator, Bonneville Power Administration, Department of the Interior.

Administrator of the National Capital Transportation Agency.

Associate Administrators of the Small Business Administration (4).

Associate Administrators, National Aeronautics and Space Administration (7).

Associate Deputy Administrator, National Aeronautics and Space Administration.

Deputy Associate Administrator, National Aeronautics and Space Administration.

Archivist of the United States.

Assistant Secretary of Health and Human Services for Administration.

Assistant Attorney General for Administration.

Assistant and Science Adviser to the Secretary of the Interior.

Chairman, Foreign Claims Settlement Commission of the United States, Department of Justice.

Chairman of the Renegotiation Board.

Chairman of the Subversive Activities Control Board.

Chief Counsel for the Internal Revenue Service, Department of the Treasury.

Commissioner, Federal Acquisition Service, General Services Administration.

Director, United States Fish and Wildlife Service, Department of the Interior.

Commissioner of Indian Affairs, Department of the Interior.

Commissioners, Indian Claims Commission (5).

Commissioner, Public Buildings Service, General Services Administration.

Commissioner of Reclamation, Department of the Interior.

Commissioner of Vocational Rehabilitation, Department of Health and Human Services.

Commissioner of Welfare, Department of Health and Human Services.

Director, Bureau of Mines, Department of the Interior.

Director, Geological Survey, Department of the Interior.

Deputy Commissioner of Internal Revenue, Department of the Treasury.

Associate Director of the Federal Mediation and Conciliation Service.

Associate Director for Volunteers, Peace Corps.

Associate Director for Program Development and Operations, Peace Corps.

Assistants to the Director of the Federal Bureau of Investigation, Department of Justice (2).

Assistant Directors, Office of Emergency Planning (3).

Fiscal Assistant Secretary of the Treasury.

General Counsel of the Agency for International Development.

General Counsel of the Nuclear Regulatory Commission.

General Counsel of the National Aeronautics and Space Administration.

Manpower Administrator, Department of Labor.

Members, Renegotiation Board.

Members, Subversive Activities Control Board.

Assistant Administrator of General Services.

Director, United States Travel Service, Department of Commerce.

Assistant Director (Program Planning, Analysis and Research), Office of Economic Opportunity.

Deputy Director, National Security Agency.

Director, Bureau of Land Management, Department of the Interior.

Director, National Park Service, Department of the Interior.

National Export Expansion Coordinator, Department of Commerce.

Staff Director, Commission on Civil Rights.

Assistant Secretary for Administration, Department of Transportation.

Director, United States National Museum, Smithsonian Institution.

Director, Smithsonian Astrophysical Observatory, Smithsonian Institution.

Administrator of the Environmental Science Services Administration.

Associate Directors of the Office of Personnel Management (5).

Assistant Federal Highway Administrator.

Deputy Administrator of the National Highway Traffic Safety Administration.

Deputy Administrator of the Federal Motor Carrier Safety Administration.

Assistant Federal Motor Carrier Safety Administrator.

Director, Bureau of Narcotics and Dangerous Drugs, Department of Justice.

Deputy Administrator, Federal Transit Administration, Department of Transportation.

General Counsel of the Equal Employment Opportunity Commission.

Executive Director, Advisory Council on Historic Preservation.

Additional Officers, Department of Energy (14).

Additional officers, Nuclear Regulatory Commission (5).

Assistant Administrator for Coastal Zone Management, National Oceanic and Atmospheric Administration.

Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration.

Assistant Administrators (3), National Oceanic and Atmospheric Administration.

General Counsel, National Oceanic and Atmospheric Administration.

Members, Federal Labor Relations Authority (2) and its General Counsel.

Additional officers, Institute for Scientific and Technological Cooperation (2).

Additional officers, Office of Management and Budget (6).

Chief Scientist, National Oceanic and Atmospheric Administration.

Director, Indian Health Service, Department of Health and Human Services.

Commissioners, United States Parole Commission (8).

Commissioner, Administration on Children, Youth, and Families.

Chairman of the Advisory Council on Historic Preservation.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 463; Pub. L. 89–670, § 10(d)(5), (e), Oct. 15, 1966, 80 Stat. 948; Pub. L. 89–734, § 1(2), Nov. 2, 1966, 80 Stat. 1163; Pub. L. 89–779, § 8(c)(2), Nov. 6, 1966, 80 Stat. 1364; Pub. L. 90–9, § 6, Apr. 10, 1967, 81 Stat. 12; Pub. L. 90–83, § 1(16), Sept. 11, 1967, 81 Stat. 198; Pub. L. 90–206, title II, § 215(c), Dec. 16, 1967, 81 Stat. 638; Pub. L. 90–351, title I, § 506, June 19, 1968, 82 Stat. 205; Pub. L. 90–407, § 15(a)(3), July 18, 1968, 82 Stat. 367; Pub. L. 90–623, § 1(4), (5), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 91–175, pt. V, § 503(3), Dec. 30, 1969, 83 Stat. 826; Pub. L. 91–375, § 6(c)(15), Aug. 12, 1970, 84 Stat. 776; Pub. L. 91–453, § 12, Oct. 15, 1970, 84 Stat. 968; Pub. L. 91–644, title I, § 7(2), Jan. 2, 1971, 84 Stat. 1887; Pub. L. 92–22, § 3, June 1, 1971, 85 Stat. 76; Pub. L. 92–255, title II, § 212(c), Mar. 21, 1972, 86 Stat. 69; Pub. L. 92–261, § 9(c), (d), Mar. 24, 1972, 86 Stat. 110; Pub. L. 92–302, § 2(d), May 18, 1972, 86 Stat. 149; Pub. L. 92–603, title IV, § 404(a), Oct. 30, 1972, 86 Stat. 1488; Pub. L. 93–43, § 2(c), June 18, 1973, 87 Stat. 78; Pub. L. 93–74, § 8, July 23, 1973, 87 Stat. 175; Pub. L. 90–351, title I, § 506(b), as added Pub. L. 93–83, § 2, Aug. 6, 1973, 87 Stat. 211; Pub. L. 93–271, § 2, Apr. 22, 1974, 88 Stat. 92; Pub. L. 93–126, § 9(c), as added Pub. L. 93–312, § 9, June 8, 1974, 88 Stat. 238; Pub. L. 93–383, title VIII, § 818(b), Aug. 22, 1974, 88 Stat. 740; Pub. L. 93–438, title III, § 310(4), Oct. 11, 1974, 88 Stat. 1253; Pub. L. 93–463, title I, § 102(c), Oct. 23, 1974, 88 Stat. 1392; Pub. L. 93–618, title I, § 172(c)(3), Jan. 3, 1975, 88 Stat. 2010; Pub. L. 94–82, title II, § 202(b)(5), Aug. 9, 1975, 89 Stat. 420; Pub. L. 94–183, § 2(19), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 94–237, § 4(c)(6), Mar. 19, 1976, 90 Stat. 244; Pub. L. 94–307, § 7, June 4, 1976, 90 Stat. 681; Pub. L. 94–370, § 15(b), July 26, 1976, 90 Stat. 1032; Pub. L. 94–422, title II, § 202, Sept. 28, 1976, 90 Stat. 1323; Pub. L. 94–503, title II, § 202(c), Oct. 15, 1976, 90 Stat. 2427; Pub. L. 94–561, § 3(b), Oct. 19, 1976, 90 Stat. 2643; Pub. L. 94–582, § 26, Oct. 21, 1976, 90 Stat. 2889; Pub. L. 95–89, title II, § 209, Aug. 4, 1977, 91 Stat. 558; Pub. L. 95–91, title VII, § 710(g), Aug. 4, 1977, 91 Stat. 609; Pub. L. 95–115, § 3(a)(6), Oct. 3, 1977, 91 Stat. 1049; Pub. L. 95–219, § 3(b), Dec. 28, 1977, 91 Stat. 1614; Pub. L. 95–452, § 10(b), Oct. 12, 1978, 92 Stat. 1108; Pub. L. 95–454, title II, §§ 201(b)(3), 202(c)(4), title VII, § 703(e), Oct. 13, 1978, 92 Stat. 1121, 1131, 1217; Pub. L. 95–521, title IV, § 406, Oct. 26, 1978, 92 Stat. 1864; Pub. L. 96–53, title IV, § 412(c), Aug. 14, 1979, 93 Stat. 377; Pub. L. 96–54, § 2(a)(25)(A), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–70, title III, § 3302(e)(11), Sept. 27, 1979, 93 Stat. 499; Pub. L. 96–88, title V, § 508(f), (g), Oct. 17, 1979, 93 Stat. 692; Pub. L. 96–107, title VIII, § 820(e)(2), Nov. 9, 1979, 93 Stat. 819; Pub. L. 96–209, title I, § 109, Mar. 14, 1980, 94 Stat. 97; Pub. L. 96–466, title V, § 504(d), Oct. 17, 1980, 94 Stat. 2203; Pub. L. 97–31, § 12(1)(C), Aug. 6, 1981, 95 Stat. 153; Pub. L. 97–113, title VII, § 705(b)(3), Dec. 29, 1981, 95 Stat. 1545; Pub. L. 97–258, § 2(a), Sept. 13, 1982, 96 Stat. 1052; Pub. L. 97–325, § 8(c), Oct. 15, 1982, 96 Stat. 1605; Pub. L. 97–449, § 3(4), (5), Jan. 12, 1983, 96 Stat. 2441; Pub. L. 98–557, § 26(b), Oct. 30, 1984, 98 Stat. 2873; Pub. L. 99–73, § 6(b)(2), July 29, 1985, 99 Stat. 173; Pub. L. 99–93, title VII, § 704(a)(3), Aug. 16, 1985, 99 Stat. 446; Pub. L. 99–145, title XII, § 1204(c), Nov. 8, 1985, 99 Stat. 721; Pub. L. 99–383, § 7(b)(2), Aug. 21, 1986, 100 Stat. 814; Pub. L. 99–619, § 2(c)(2), (d), Nov. 6, 1986, 100 Stat. 3491; Pub. L. 99–659, title IV, § 407(e)(3), Nov. 14, 1986, 100 Stat. 3740; Pub. L. 100–180, div. A, title XII, § 1245(c), Dec. 4, 1987, 101 Stat. 1165; Pub. L. 100–504, title I, § 103(b), Oct. 18, 1988, 102 Stat. 2522; Pub. L. 100–527, § 13(g), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 100–598, § 8, Nov. 3, 1988, 102 Stat. 3035; Pub. L. 100–607, title V, § 503(b)(1), Nov. 4, 1988, 102 Stat. 3121; Pub. L. 100–690, title VII, § 7252(b)(4), Nov. 18, 1988, 102 Stat. 4436; Pub. L. 100–713, title VI, § 601(d), Nov. 23, 1988, 102 Stat. 4826; Pub. L. 101–319, §§ 3(b), 4, July 3, 1990, 104 Stat. 290, 291; Pub. L. 101–501, title IX, § 915(b)(1)(B), Nov. 3, 1990, 104 Stat. 1263; Pub. L. 101–509, title V, § 529 [title I, § 113(1)], Nov. 5, 1990, 104 Stat. 1427, 1455; Pub. L. 102–190, div. A, title IX, § 903(a)(2), div. C, title XXXV, § 3504(b), Dec. 5, 1991, 105 Stat. 1451, 1586; Pub. L. 102–240, title III, § 3004(d)(2), title VI, § 6006(d), Dec. 18, 1991, 105 Stat. 2088, 2174; Pub. L. 102–359, § 2(b)(2), Aug. 26, 1992, 106 Stat. 962; Pub. L. 103–123, title I, § 108(a)(1), Oct. 28, 1993, 107 Stat. 1234; Pub. L. 103–333, title I, § 106, Sept. 30, 1994, 108 Stat. 2549; Pub. L. 103–354, title II, § 294, Oct. 13, 1994, 108 Stat. 3237; Pub. L. 104–106, div. A, title IX, § 904(b)(2), Feb. 10, 1996, 110 Stat. 403; Pub. L. 104–201, div. A, title X, § 1073(e)(1)(A), Sept. 23, 1996, 110 Stat. 2658; Pub. L. 105–85, div. A, title X, § 1073(e)(2), Nov. 18, 1997, 111 Stat. 1906; Pub. L. 105–277, div. G, subdiv. A, title XII, § 1224(4), title XIII, § 1332(3), Oct. 21, 1998, 112 Stat. 2681–772, 2681–785; Pub. L. 105–393, title I, § 103, Nov. 13, 1998, 112 Stat. 3617; Pub. L. 106–44, § 2(b), Aug. 5, 1999, 113 Stat. 223; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(b)(4)], Nov. 29, 1999, 113 Stat. 1536, 1501A–583; Pub. L. 106–159, title I, § 101(d)(2), Dec. 9, 1999, 113 Stat. 1751; Pub. L. 107–171, title X, § 10702(c)(2), May 13, 2002, 116 Stat. 517; Pub. L. 108–426, § 3(c), Nov. 30, 2004, 118 Stat. 2425; Pub. L. 109–313, § 2(b), Oct. 6, 2006, 120 Stat. 1734; Pub. L. 111–383, div. A, title IX, § 901(n)(2)(B), (3), Jan. 7, 2011, 124 Stat. 4327; Pub. L. 113–76, div. H, title I, § 111(b), Jan. 17, 2014, 128 Stat. 362; Pub. L. 114–94, div. A, title VI, § 6011(d)(1)(C), Dec. 4, 2015, 129 Stat. 1570; Pub. L. 114–289, title V, § 501(c)(4), Dec. 16, 2016, 130 Stat. 1490; Pub. L. 115–254, div. F, title VI, § 1470(b)(3), Oct. 5, 2018, 132 Stat. 3516.)

5 - 4 - 4 - 2 - 2 - 7 Presidential authority to place positions at levels IV and V

In addition to the positions listed in sections 5315 and 5316 of this title, the President, from time to time, may place in levels IV and V of the Executive Schedule positions held by not to exceed 34 individuals when he considers that action necessary to reflect changes in organization, management responsibilities, or workload in an Executive agency. Such an action with respect to a position to which appointment is made by the President by and with the advice and consent of the Senate is effective only at the time of a new appointment to the position. Notice of each action taken under this section shall be published in the Federal Register, except when the President determines that the publication would be contrary to the interest of national security. The President may not take action under this section with respect to a position the pay for which is fixed at a specific rate by this subchapter or by statute enacted after August 14, 1964.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 467; Pub. L. 89–670, § 10(d)(6), Oct. 15, 1966, 80 Stat. 948; Pub. L. 90–83, § 1(17), Sept. 11, 1967, 81 Stat. 199.)

5 - 4 - 4 - 2 - 2 - 8 Adjustments in rates of pay

(a)

Subject to subsection (b), effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5303 of this title in the rates of pay under the General Schedule, the annual rate of pay for positions at each level of the Executive Schedule shall be adjusted by an amount, rounded to the nearest multiple of $100 (or if midway between multiples of $100, to the next higher multiple of $100), equal to the percentage of such annual rate of pay which corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as determined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General Schedule takes effect.

(b)

In no event shall the percentage adjustment taking effect under subsection (a) in any calendar year (before rounding), in any rate of pay, exceed the percentage adjustment taking effect in such calendar year under section 5303 in the rates of pay under the General Schedule.

(Added Pub. L. 94–82, title II, § 202(a), Aug. 9, 1975, 89 Stat. 419; amended Pub. L. 101–194, title VII, § 704(a)(2)(A), Nov. 30, 1989, 103 Stat. 1769; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(4)(A)], Nov. 5, 1990, 104 Stat. 1427, 1439; Pub. L. 103–356, title I, § 101(3), Oct. 13, 1994, 108 Stat. 3411.)

5 - 4 - 4 - 3 GENERAL SCHEDULE PAY RATES (§§ 5331 to 5338)

5 - 4 - 4 - 3 - 1 Definitions; application

(a)

For the purpose of this subchapter, “agency”, “employee”, “position”, “class”, and “grade” have the meanings given them by section 5102 of this title.

(b)

This subchapter applies to employees and positions to which chapter 51applies, other than Senior Executive Service positions, positions in the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, and positions to which section 5376 applies.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 467; Pub. L. 95–454, title IV, § 408(b)(2), Oct. 13, 1978, 92 Stat. 1173; Pub. L. 100–325, § 2(h)(3), May 30, 1988, 102 Stat. 582; Pub. L. 101–509, title V, § 529 [title I, § 102(c)], Nov. 5, 1990, 104 Stat. 1427, 1444.)

5 - 4 - 4 - 3 - 2 The General Schedule

(a)

(1)

The General Schedule, the symbol for which is “GS”, is the basic pay schedule for positions to which this subchapter applies. Each employee to whom this subchapter applies is entitled to basic pay in accordance with the General Schedule.

(2)

The General Schedule is a schedule of annual rates of basic pay, consisting of 15 grades, designated “GS–1” through “GS–15”, consecutively, with 10 rates of pay for each such grade. The rates of pay of the General Schedule are adjusted in accordance with section 5303.

(b)

When payment is made on the basis of an hourly, daily, weekly, or biweekly rate, the rate is computed from the appropriate annual rate of basic pay named by subsection (a) of this section in accordance with the rules prescribed by section 5504(b) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 467; Pub. L. 90–83, § 1(18), Sept. 11, 1967, 81 Stat. 199; Pub. L. 90–206, title II, § 202(a), Dec. 16, 1967, 81 Stat. 624; Pub. L. 95–454, title V, § 503(e), Oct. 13, 1978, 92 Stat. 1184; Pub. L. 98–615, title II, § 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 102–378, § 2(29), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 103–89, § 3(b)(1)(F), Sept. 30, 1993, 107 Stat. 982.)

5 - 4 - 4 - 3 - 3 Minimum rate for new appointments

New appointments shall be made at the minimum rate of the appropriate grade. However, under regulations prescribed by the Office of Personnel Managementwhich provide for such considerations as the existing pay or unusually high or unique qualifications of the candidate, or a special need of the Government for his services, the head of an agency may appoint, with the approval of the Office in each specific case, an individual to a position at such a rate above the minimum rate of the appropriate grade as the Office may authorize for this purpose. The approval of the Office in each specific case is not required with respect to an appointment made by the Librarian of Congress.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 467; Pub. L. 90–83, § 1(19), Sept. 11, 1967, 81 Stat. 199; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(26)(A), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, § 529 [title I, § 106, title II, § 211(b)(1)], Nov. 5, 1990, 104 Stat. 1427, 1449, 1461.)

5 - 4 - 4 - 3 - 4 Rate on change of position or type of appointment; regulations

(a)The rate of basic pay to which an employee is entitled is governed by regulations prescribed by the Office of Personnel Management in conformity with this subchapter and chapter 51 of this title when—

(1)

he is transferred from a position in the legislative, judicial, or executive branch to which this subchapter does not apply;

(2)

he is transferred from a position in the legislative, judicial, or executive branch to which this subchapter applies to another such position;

(3)

he is demoted to a position in a lower grade;

(4)

he is reinstated, reappointed, or reemployed in a position to which this subchapter applies following service in any position in the legislative, judicial, or executive branch;

(5)

his type of appointment is changed;

(6)

his employment status is otherwise changed; or

(7)

his position is changed from one grade to another grade.

For the purpose of this subsection, an individual employed by the Appalachian Regional Commission under section 14306(a)(2) of title 40, who was a Federal employee immediately prior to such employment by a commission and within 6 months after separation from such employment is employed in a position to which this subchapter applies, shall be treated as if transferred from a position in the executive branch to which this subchapter does not apply.

(b)An employee who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred. If, in the case of an employee so promoted or transferred who is receiving basic pay at a rate in excess of the maximum rate of his grade, there is no rate in the higher grade which is at least two step-increases above his existing rate of basic pay, he is entitled to—

(1)

the maximum rate of the higher grade; or

(2)

his existing rate of basic pay, if that rate is the higher.

If an employee so promoted or transferred is receiving basic pay at a rate saved to him under subchapter VI of this chapter on reduction in grade, he is entitled to—

(A)

basic pay at a rate two steps above the rate which he would be receiving if subchapter VI of this chapter were not applicable to him; or

(B)

his existing rate of basic pay, if that rate is the higher.

If an employee’s rate after promotion or transfer is greater than the maximum rate of basic pay for the employee’s grade, that rate shall be treated as a retained rate under section 5363. The Office of Personnel Management shall prescribe by regulation the circumstances under which and the extent to which special rates under section 5305 (or similar provision of law) or locality-adjusted rates under section 5304 (or similar provision of law) are considered to be basic pay in applying this subsection.

(c)An employee in the legislative branch who is paid by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives, and who has completed two or more years of service as such an employee, and a Member of the Senate or House of Representatives who has completed two or more years of service as such a Member, may, on appointment to a position to which this subchapter applies, have his initial rate of pay fixed—

(1)

at the minimum rate of the appropriate grade; or

(2)

at a step of the appropriate grade that does not exceed the highest previous rate of pay received by him during that service in the legislative branch.

(d)

The rate of pay established for a teaching position as defined by section 901 of title 20 held by an individual who becomes subject to subsection (a) of this section is deemed increased by an amount determined under regulations which the Secretary of Defense shall prescribe for the determination of the yearly rate of pay of the position. The amount by which a rate of pay is increased under the regulations may not exceed the amount equal to 20 percent of that rate of pay.

(e)An employee of a county committee established pursuant to section 8(b) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)) may, on appointment to a position subject to this subchapter, have the initial rate of basic pay of the employee fixed at—

(1)

the lowest rate of the higher grade that exceeds the rate of basic pay of the employee with the county committee by not less than 2 step-increases of the grade from which the employee was promoted, if the Federal Civil Serviceposition under this subchapter is at a higher grade than the last grade the employee had while an employee of the county committee;

(2)

the same step of the grade as the employee last held during service with the county committee, if the Federal Civil Service position under this subchapter is at the same grade as the last grade the employee had while an employee of the county committee; or

(3)

the lowest step of the Federal grade for which the rate of basic pay is equal to or greater than the highest previous rate of pay of the employee, if the Federal Civil Service position under this subchapter is at a lower grade than the last grade the employee had while an employee of the county committee.

(f)

(1)An employee of a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard described in section 2105(c) who moves, without a break in service of more than 3 days, to a position in the Department of Defense or the Coast Guard, respectively, that is subject to this subchapter, may have such employee’s initial rate of basic pay fixed at the minimum rate of the appropriate grade or at any step of such grade that does not exceed—

(A)

if the highest previous rate of basic pay received by that employeeduring the employee’s service described in section 2105(c) is equal to a rate of the appropriate grade, such rate of the appropriate grade;

(B)

if the employee’s highest previous rate of basic pay (as described in subparagraph (A)) is between two rates of the appropriate grade, the higher of those two rates; or

(C)

if the employee’s highest previous rate of basic pay (as described in subparagraph (A)) exceeds the maximum rate of the appropriate grade,the maximum rate of the appropriate grade.

(2)

In the case of a nonappropriated fund employee who is moved involuntarily from such nonappropriated fund instrumentality without a break in service of more than 3 days and without substantial change in duties to a position that is subject to this subchapter, the employee’s pay shall be set at a rate (not above the maximum for the grade, except as may be provided for under section 5365) that is not less than the employee’s rate of basic pay under the nonappropriated fund instrumentality immediately prior to so moving.

(g)In the case of an employee who—

(1)

moves to a new official duty station, and

(2)

by virtue of such move, becomes subject to a different pay schedule,

any rate adjustment under the preceding provisions of this section, with respect to such employee in connection with such move, shall be made—

(A)

first, by determining the rate of pay to which such employee would be entitled at the new official duty station based on such employee’s position,grade, and step (or relative position in the rate range) before the move, and

(B)

then, by applying the provisions of this section that would otherwise apply (if any), treating the rate determined under subparagraph (A) as if it were the rate last received by the employee before the rate adjustment.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 468; Pub. L. 90–103, title I, § 105, Oct. 11, 1967, 81 Stat. 257; Pub. L. 90–367, § 1, June 29, 1968, 82 Stat. 277; Pub. L. 90–623, § 1(6), (24), Oct. 22, 1968, 82 Stat. 1312, 1314; Pub. L. 95–454, title V, § 503(f), title VIII, § 801(a)(2), (3)(F), (G), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1184, 1221, 1222, 1224; Pub. L. 96–54, § 2(a)(27), Aug. 14, 1979, 93 Stat. 383; Pub. L. 98–615, title II, § 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 99–251, title III, § 306(b), Feb. 27, 1986, 100 Stat. 27; Pub. L. 101–508, title VII, § 7202(d), Nov. 5, 1990, 104 Stat. 1388–335; Pub. L. 103–89, § 3(b)(1)(G), Sept. 30, 1993, 107 Stat. 982; Pub. L. 104–186, title II, § 215(4), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 105–85, div. A, title XI, § 1104(a), Nov. 18, 1997, 111 Stat. 1923; Pub. L. 105–393, title II, § 223, Nov. 13, 1998, 112 Stat. 3626; Pub. L. 107–171, title X, § 10701, May 13, 2002, 116 Stat. 515; Pub. L. 108–178, § 4(a), Dec. 15, 2003, 117 Stat. 2640; Pub. L. 108–411, title III, § 301(a)(3), Oct. 30, 2004, 118 Stat. 2315; Pub. L. 110–181, div. A, title XI, § 1114, Jan. 28, 2008, 122 Stat. 360.)

5 - 4 - 4 - 3 - 5 Periodic step-increases

(a)An employee paid on an annual basis, and occupying a permanent position within the scope of the General Schedule, who has not reached the maximum rate of pay for the grade in which his position is placed, shall be advanced in pay successively to the next higher rate within the grade at the beginning of the next pay period following the completion of—

(1)

each 52 calendar weeks of service in pay rates 1, 2, and 3;

(2)

each 104 calendar weeks of service in pay rates 4, 5, and 6; or

(3)

each 156 calendar weeks of service in pay rates 7, 8, and 9;

subject to the following conditions:

(A)

the employee did not receive an equivalent increase in pay from any cause during that period; and

(B)

the work of the employee is of an acceptable level of competence as determined by the head of the agency.

(b)

Under regulations prescribed by the Office of Personnel Management, the benefit of successive step-increases shall be preserved for employees whose continuous service is interrupted in the public interest by service with the armed forces or by service in essential non-Government civilian employment during a period of war or national emergency.

(c)

When a determination is made under subsection (a) of this section that the work of an employee is not of an acceptable level of competence, the employeeis entitled to prompt written notice of that determination and an opportunity for reconsideration of the determination within his agency under uniform procedures prescribed by the Office of Personnel Management. If the determination is affirmed on reconsideration, the employee is entitled to appeal to the Merit Systems Protection Board. If the reconsideration or appeal results in a reversal of the earlier determination, the new determination supersedes the earlier determination and is deemed to have been made as of the date of the earlier determination. The authority of the Office to prescribe procedures and the entitlement of the employee to appeal to the Board do not apply to a determination of acceptable level of competence made by the Librarian of Congress.

(d)

An increase in pay granted by statute is not an equivalent increase in pay within the meaning of subsection (a) of this section.

(e)

This section does not apply to the pay of an individual appointed by the President, by and with the advice and consent of the Senate.

(f)

In computing periods of service under subsection (a) in the case of an employee who moves without a break in service of more than 3 days from aposition under a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard described in section 2105(c) to a position under the Department of Defense or the Coast Guard, respectively, that is subject to this subchapter, service under such instrumentality shall, under regulations prescribed by the Office, be deemed service in a position subject to this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 469; Pub. L. 90–83, § 1(20), Sept. 11, 1967, 81 Stat. 199; Pub. L. 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title V, § 503(g), title IX, § 906(a)(2), (8), Oct. 13, 1978, 92 Stat. 1184, 1224, 1225; Pub. L. 96–54, § 2(a)(28), Aug. 14, 1979, 93 Stat. 383; Pub. L. 98–615, title II, §§ 203, 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 101–508, title VII, § 7202(e), Nov. 5, 1990, 104 Stat. 1388–336; Pub. L. 101–509, title V, § 529 [title I, § 104(d)(2)], Nov. 5, 1990, 104 Stat. 1427, 1447; Pub. L. 103–89, § 3(b)(1)(H), Sept. 30, 1993, 107 Stat. 982.)

5 - 4 - 4 - 3 - 6 Additional step-increases

(a)

Within the limit of available appropriations and under regulations prescribed by the Office of Personnel Management, the head of each agency may grant additional step-increases in recognition of high quality performance above that ordinarily found in the type of position concerned. However, an employee is eligible under this section for only one additional step-increase within any 52-week period.

(b)

A step-increase under this section is in addition to those under section 5335 of this title and is not an equivalent increase in pay within the meaning of section 5335(a) of this title.

(c)

This section does not apply to the pay of an individual appointed by the President, by and with the advice and consent of the Senate.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 469; Pub. L. 95–454, title V, § 503(h), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1184, 1224; Pub. L. 98–615, title II, § 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 103–89, § 3(b)(1)(I), Sept. 30, 1993, 107 Stat. 982.)

5 - 4 - 4 - 3 - 7 Regulations

Repealed Oct. 13, 1978,

5 - 4 - 4 - 4 PREVAILING RATE SYSTEMS (§§ 5341 to 5349)

5 - 4 - 4 - 4 - 1 Policy

It is the policy of Congress that rates of pay of prevailing rate employees be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and be based on principles that—

(1)

there will be equal pay for substantially equal work for all prevailing rate employees who are working under similar conditions of employment in all agencies within the same local wage area;

(2)

there will be relative differences in pay within a local wage area when there are substantial or recognizable differences in duties, responsibilities, and qualification requirements among positions;

(3)

the level of rates of pay will be maintained in line with prevailing levels for comparable work within a local wage area; and

(4)

the level of rates of pay will be maintained so as to attract and retain qualified prevailing rate employees.

(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 564.)

5 - 4 - 4 - 4 - 2 Definitions; application

(a)For the purpose of this subchapter—

(1)“agency” means an Executive agency; but does not include—

(A)

a Government controlled corporation;

(B)

the Tennessee Valley Authority;

(C)

the Virgin Islands Corporation;

(D)

the Atomic Energy Commission;

(E)

the Central Intelligence Agency;

(F)

the National Security Agency, Department of Defense;

(G)

the Bureau of Engraving and Printing, except for the purposes of section 5349 of this title;

(H)

the Government Accountability Office; or [1]

(J)

 [2] the Defense Intelligence Agency, Department of Defense; or

(K)

the National Geospatial-Intelligence Agency, Department of Defense;

(2)“prevailing rate employee” means—

(A)

an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement;

(B)

an employee of a nonappropriated fund instrumentality described by section 2105(c) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement; and

(C)

an employee of the Veterans’ Canteen Service, Department of Veterans Affairs, excepted from chapter 51 of this title by section 5102(c)(14) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or labor experience and knowledge as the paramount requirement; and

(3)

“position” means the work, consisting of duties and responsibilities, assignable to a prevailing rate employee.

(b)

(1)

Except as provided by paragraphs (2) and (3) of this subsection, this subchapter applies to all prevailing rate employees and positions in or under an agency.

(2)This subchapter does not apply to employees and positionsdescribed by section 5102(c) of this title other than by—

(A)

paragraph (7) of that section to the extent that such paragraph (7) applies to employees and positions other than employees and positions of the Bureau of Engraving and Printing; and

(B)

paragraph (14) of that section.

(3)

This subchapter, except section 5348, does not apply to officers and members of crews of vessels excepted from chapter 51 of this titleby section 5102(c)(8) of this title.

(c)

Each prevailing rate employee employed within any of the several States or the District of Columbia shall be a United States citizen or a bona fide resident of one of the several States or the District of Columbia unless the Secretary of Labor certifies that no United States citizen or bona fide resident of one of the several States or the District of Columbia is available to fill the particular position.

(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 564; amended Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 96–191, § 8(d), Feb. 15, 1980, 94 Stat. 33; Pub. L. 97–468, title VI, § 615(b)(1)(D), Jan. 14, 1983, 96 Stat. 2578; Pub. L. 98–618, title V, § 502(b), Nov. 8, 1984, 98 Stat. 3303; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 103–359, title V, § 501(h), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), div. C, title XXXV, § 3548(a)(3)(A), Sept. 23, 1996, 110 Stat. 2687, 2868; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575.)

5 - 4 - 4 - 4 - 3 Prevailing rate determinations; wage schedules; night differentials

(a)The pay of prevailing rate employees shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided by section 206(a)(1) of title 29. To carry out this subsection—

(1)the Office of Personnel Management shall define, as appropriate—

(A)with respect to prevailing rate employees other than prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of—

(i)

individual local wage areas for prevailing rate employeeshaving regular wage schedules and rates; and

(ii)

wage areas for prevailing rate employees having special wage schedules and rates;

(B)with respect to prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of—

(i)

individual local wage areas for prevailing rate employeesunder such paragraphs having regular wage schedules and rates (but such boundaries shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed); and

(ii)

wage areas for prevailing rate employees under such paragraphs having special wage schedules and rates;

(2)

the Office of Personnel Management shall designate a lead agency for each wage area;

(3)

subject to paragraph (5) of this subsection, and subsections (c)(1)–(3) and (d) of this section, a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees;

(4)

the head of each agency having prevailing rate employees in a wage area shall apply, to the prevailing rate employees of that agency in that area, the wage schedules and rates established by the lead agency, or by the Office of Personnel Management, as appropriate, for prevailing rate employees in that area; and

(5)

the Office of Personnel Management shall establish wage schedules and rates for prevailing rate employees who are United States citizens employed in any area which is outside the several States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and the Trust Territory of the Pacific Islands.

(b)

The Office of Personnel Management shall schedule full-scale wage surveys every 2 years and shall schedule interim surveys to be conducted between each 2 consecutive full-scale wage surveys. The Office may schedule more frequent surveys when conditions so suggest.

(c)The Office of Personnel Management, by regulation, shall prescribe practices and procedures for conducting wage surveys, analyzing wage survey data, developing and establishing wage schedules and rates, and administering the prevailing rate system. The regulations shall provide—

(1)

that, subject to subsection (d) of this section, wages surveyed be those paid by private employers in the wage area for similar work performed by regular full-time employees, except that, for prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the wages surveyed shall be those paid by private employers to full-time employees in a representative number of retail, wholesale, service, and recreational establishments similar to those in which suchprevailing rate employees are employed;

(2)

for participation at all levels by representatives of organizations accorded recognition as the representatives of prevailing rate employees in every phase of providing an equitable system for fixing and adjusting the rates of pay for prevailing rate employees, including the planning of the surveys, the drafting of specifications, the selection of data collectors, the collection and the analysis of the data, and the submission of recommendations to the head of the lead agency for wage schedules and rates and for special wage schedules and rates where appropriate;

(3)for requirements for the accomplishment of wage surveys and for the development of wage schedules and rates for prevailing rate employees, including, but not limited to—

(A)

nonsupervisory and supervisory prevailing rate employees paid under regular wage schedules and rates;

(B)

nonsupervisory and supervisory prevailing rate employees paid under special wage schedules and rates; and

(C)

nonsupervisory and supervisory prevailing rate employeesdescribed under paragraphs (B) and (C) of section 5342(a)(2) of this title;

(4)

for proper differentials, as determined by the Office, for duty involving unusually severe working conditions or unusually severe hazards, and for any hardship or hazard related to asbestos, such differentials shall be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970;

(5)

rules governing the administration of pay for individual employees on appointment, transfer, promotion, demotion, and other similar changes in employment status; and

(6)

for a continuing program of maintenance and improvement designed to keep the prevailing rate system fully abreast of changing conditions, practices, and techniques both in and out of the Government of the United States.

(d)

(1)

A lead agency, in making a wage survey, shall determine whether there exists in the local wage area a number of comparable positionsin private industry sufficient to establish wage schedules and rates for the principal types of positions for which the survey is made. The determination shall be in writing and shall take into consideration all relevant evidence, including evidence submitted by employee organizations recognized as representative of prevailing rate employees in that area.

(2)When the lead agency determines that there is a number of comparable positions in private industry insufficient to establish the wage schedules and rates, such agency shall establish the wage schedules and rates on the basis of—

(A)

local private industry rates; and

(B)

rates paid for comparable positions in private industry in the nearest wage area that such agency determines is most similar in the nature of its population, employment, manpower, and industry to the local wage area for which the wage survey is being made.

(e)

(1)Each grade of a regular wage schedule for nonsupervisor prevailing rate employees shall have 5 steps with—

(A)

the first step at 96 percent of the prevailing rate;

(B)

the second step at 100 percent of the prevailing rate;

(C)

the third step at 104 percent of the prevailing rate;

(D)

the fourth step at 108 percent of the prevailing rate; and

(E)

the fifth step at 112 percent of the prevailing rate.

(2)A prevailing rate employee under a regular wage schedule who has a work performance rating of satisfactory or better, as determined by the head of the agency, shall advance automatically to the next higher step within the grade at the beginning of the first applicable pay period following his completion of—

(A)

26 calendar weeks of service in step 1;

(B)

78 calendar weeks of service in step 2; and

(C)

104 calendar weeks of service in each of steps 3 and 4.

(3)

Under regulations prescribed by the Office of Personnel Management, the benefits of successive step increases shall be preserved for prevailing rate employees under a regular wage schedule whose continuous service is interrupted in the public interest by service with the armed forces or by service in essential non-Government civilian employment during a period of war or national emergency.

(4)

Supervisory wage schedules and special wage schedules authorized under subsection (c)(3) of this section may have single or multiple rates or steps according to prevailing practices in the industry on which the schedule is based.

(f)A prevailing rate employee is entitled to pay at his scheduled rate plus a night differential—

(1)

amounting to 7½ percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 3 p.m. and midnight; and

(2)

amounting to 10 percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 11 p.m. and 8 a.m.

A night differential under this subsection is a part of basic pay.

(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 566; amended Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–70, title III, § 3302(e)(10), Sept. 27, 1979, 93 Stat. 499; Pub. L. 99–145, title XII, § 1242(a), Nov. 8, 1985, 99 Stat. 735; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(3)(B), Sept. 23, 1996, 110 Stat. 2868; Pub. L. 107–107, div. A, title XI, § 1113(a), Dec. 28, 2001, 115 Stat. 1239; Pub. L. 108–136, div. A, title XI, § 1122(a), Nov. 24, 2003, 117 Stat. 1636.)

5 - 4 - 4 - 4 - 4 Effective date of wage increase; retroactive pay

(a)

Each increase in rates of basic pay granted, pursuant to a wage survey, to prevailing rate employees is effective not later than the first day of the first pay period which begins on or after the 45th day, excluding Saturdays and Sundays, following the date the wage survey is ordered to be made.

(b)Retroactive pay is payable by reason of an increase in rates of basic pay referred to in subsection (a) of this section only when—

(1)

the individual is in the service of the Government of the United States, including service in the armed forces, or the government of the District of Columbia on the date of the issuance of the order granting the increase; or

(2)

the individual retired or died during the period beginning on the effective date of the increase and ending on the date of issuance of the order granting the increase, and only for services performed during that period.

For the purpose of this subsection, service in the armed forces includes the period provided by statute for the mandatory restoration of the individual to a position in or under the Government of the United States or the government of the District of Columbia after he is relieved from training and service in the armed forces or discharged from hospitalization following that training and service.

(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 568.)

5 - 4 - 4 - 4 - 5 Job grading system

(a)The Office of Personnel Management, after consulting with the agencies and with employee organizations, shall establish and maintain a job grading system for positions to which this subchapter applies. In carrying out this subsection, the Office shall—

(1)

establish the basic occupational alinement and grade structure or structures for the job grading system;

(2)

establish and define individual occupations and the boundaries of each occupation;

(3)

establish job titles within occupations;

(4)

develop and publish job grading standards; and

(5)

provide a method to assure consistency in the application of job standards.

(b)

The Office, from time to time, shall review such numbers of positions in each agency as will enable the Office to determine whether the agency is placing positions in occupations and grades in conformance with or consistently with published job standards. When the Office finds that a position is not placed in its proper occupation and grade in conformance with published standards or that a position for which there is no published standard is not placed in the occupation and grade consistently with published standards, it shall, after consultation with appropriate officials of the agency concerned, place the position in its appropriate occupation and grade and shall certify this action to the agency. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.

(c)On application, made in accordance with regulations prescribed by the Office, by a prevailing rate employee for the review of the action of an employing agency in placing his position in an occupation and grade for pay purposes, the Office shall—

(1)

ascertain currently the facts as to the duties, responsibilities, and qualification requirements of the position;

(2)

decide whether the position has been placed in the proper occupation and grade; and

(3)

approve, disapprove, or modify, in accordance with its decision, the action of the employing agency in placing the position in an occupation and grade.

The Office shall certify to the agency concerned its action under paragraph (3) of this subsection. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.

(Added Pub. L. 90–206, title II, § 223(a), Dec. 16, 1967, 81 Stat. 641, § 5345; renumbered § 5346 and amended Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 570; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 4 - 6 Federal Prevailing Rate Advisory Committee

(a)There is established a Federal Prevailing Rate Advisory Committee composed of—

(1)

the Chairman, who shall not hold any other office or position in the Government of the United States or the government of the District of Columbia, and who shall be appointed by the Director of the Office of Personnel Management for a 4-year term;

(2)

one member from the Office of the Secretary of Defense, designated by the Secretary of Defense;

(3)

two members from the military departments, designated by the Director of the Office of Personnel Management;

(4)

one member, designated by the Director of the Office of Personnel Management from time to time from an agency (other than the Department of Defense, a military department, and the Office of Personnel Management);

(5)

an employee of the Office of Personnel Management, designated by the Director of the Office of Personnel Management; and

(6)

five members, designated by the Director of the Office of Personnel Management, from among the employee organizations representing, under exclusive recognition of the Government of the United States, the largest numbers of prevailing rate employees.

(b)

In designating members from among employee organizations under subsection (a)(6) of this section, the Director of the Office of Personnel Management shall designate, as nearly as practicable, a number of members from a particular employee organization in the same proportion to the total number of employee representatives appointed to the Committee under subsection (a)(6) of this section as the number ofprevailing rate employees represented by such organization is to the total number of prevailing rate employees. However, there shall not be more than two members from any one employee organization nor more than four members from a single council, federation, alliance, association, or affiliation of employee organizations.

(c)

Every 2 years the Director of the Office of Personnel Management shall review employee organization representation to determine adequate or proportional representation under the guidelines of subsection (b) of this section.

(d)

The members from the employee organizations serve at the pleasure of the Director of the Office of Personnel Management.

(e)

The Committee shall study the prevailing rate system and other matters pertinent to the establishment of prevailing rates under this subchapter and, from time to time, advise the Office of Personnel Management thereon. Conclusions and recommendations of the Committee shall be formulated by majority vote. The Chairman of the Committee may vote only to break a tie vote of the Committee.

(f)

The Committee shall meet at the call of the Chairman. However, a special meeting shall be called by the Chairman if 5 members make a written request to the Chairman to call a special meeting to consider matters within the purview of the Committee.

(g)

(1)

Except as provided in paragraph (2), members of the Committee described in paragraphs (2)–(5) of subsection (a) of this section serve without additional pay. Members who represent employee organizations are not entitled to pay from the Government of the United States for services rendered to the Committee.

(2)

The position of Chairman shall be considered to be a Senior Executive Service position within the meaning of section 3132(a), and shall be subject to all provisions of this title relating to Senior Executive Service positions, including section 5383.

(h)

The Office of Personnel Management shall provide such clerical and professional personnel as the Chairman of the Committee considers appropriate and necessary to carry out its functions under this subchapter. Such personnel shall be responsible to the Chairman of the Committee.

(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 571; amended Pub. L. 95–454, title IX, § 906(a)(1), (2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(15), Aug. 14, 1979, 93 Stat. 382; Pub. L. 102–378, § 2(30), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 104–66, title II, § 2181(d), Dec. 21, 1995, 109 Stat. 732.)

5 - 4 - 4 - 4 - 7 Crews of vessels

(a)

Except as provided by subsection (b) of this section, the pay of officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c)(8) of this title shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry.

(b)

Vessel employees in an area where inadequate maritime industry practice exists and vessel employees of the Corps of Engineers shall have their pay fixed and adjusted under the provisions of this subchapter other than this section, as appropriate.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 471, § 5348, formerly § 5342; renumbered and amended Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 572; Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(3)(C), Sept. 23, 1996, 110 Stat. 2868.)

5 - 4 - 4 - 4 - 8 Prevailing rate employees; legislative, judicial, Bureau of Engraving and Printing, and government of the District of Columbia

(a)

The pay of employees, described under section 5102(c)(7) of this title, in the Library of Congress, the Botanic Garden, the Government Publishing Office, the Government Accountability Office, the Office of the Architect of the Capitol, the Bureau of Engraving and Printing, and the government of the District of Columbia, shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and in accordance with such provisions of this subchapter, including the provisions of section 5344, relating to retroactive pay, and subchapter VI of this chapter, relating to grade and pay retention, as the pay-fixing authority of each such agency may determine. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided for by section 206(a)(1) of title 29. If the pay-fixing authority concerned determines that the provisions of subchapter VI of this chapter should apply to any employee under his jurisdiction, then the employee concerned shall be deemed to have satisfied the requirements of section 5361(1) of this title if the tenure of his appointment is substantially equivalent to the tenure of any appointment referred to in such paragraph.

(b)

Subsection (a) of this section does not modify or otherwise affect section 5102(d) of this title, section 305 of title 44, and section 5141 of title 31.

(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 572; amended Pub. L. 95–454, title VIII, § 801(a)(3)(H), Oct. 13, 1978, 92 Stat. 1222; Pub. L. 97–258, § 3(a)(11), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 100–426, title III, § 301, Sept. 9, 1988, 102 Stat. 1602; Pub. L. 101–474, § 5(j), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.)

Repealed Oct. 13, 1978,

5 - 4 - 4 - 5 STUDENT-EMPLOYEES (§§ 5351 to 5356)

5 - 4 - 4 - 5 - 1 Definitions

For the purpose of this subchapter—

(1)

“agency” means an Executive agency, a military department, and the government of the District of Columbia; and

(2)“student-employee” means—

(A)

a student nurse, medical or dental intern, resident-in-training, student dietitian, student physical therapist, and student occupational therapist, assigned or attached to a hospital, clinic, or medical or dental laboratory operated by an agency; and

(B)

any other student-employee, assigned or attached primarily for training purposes to a hospital, clinic, or medical or dental laboratory operated by an agency, who is designated by the head of the agency with the approval of the Office of Personnel Management.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 472; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 5 - 2 Stipends

The head of each agency, and the District of Columbia Council with respect to the government of the District of Columbia, shall fix the stipends of its student-employees. The stipend may not exceed the applicable maximum prescribed by the Office of Personnel Management.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 472; Pub. L. 90–623, § 1(7), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 4 - 5 - 3 Quarters, subsistence, and laundry

An agency may provide living quarters, subsistence, and laundering to student-employees while at the hospitals, clinics, or laboratories. The reasonable value of the accommodations, when furnished, shall be deducted from the stipend of the student-employee. The head of the agency concerned, and the District of Columbia Council with respect to the government of the District of Columbia, shall fix the reasonable value of the accommodations at an amount not less than the lowest deduction applicable to regular employees at the same hospital, clinic, or laboratory for similar accommodations.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 472; Pub. L. 90–623, § 1(8), Oct. 22, 1968, 82 Stat. 1312.)

5 - 4 - 4 - 5 - 4 Effect of detail or affiliation; travel expenses

(a)

Status as a student-employee is not terminated by a temporary detail to or affiliation with another Government or non-Government institution to procure necessary supplementary training or experience pursuant to an order of the head of the agency. A student-employee may receive his stipend and other perquisites provided under this subchapter from the hospital, clinic, or laboratory to which he is assigned or attached for not more than 60 days of a detail or affiliation for each training year, as defined by the head of the agency.

(b)

When the detail or affiliation under subsection (a) of this section is to or with another Federal institution, the student-employee is entitled to necessary expenses of travel to and from the institution in accordance with subchapter I of chapter 57 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 472.)

5 - 4 - 4 - 5 - 5 Effect on other statutes

This subchapter does not limit the authority conferred on the Secretary of Veterans Affairs by chapter 73 of title 38.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 472; Pub. L. 102–54, § 13(b)(3), June 13, 1991, 105 Stat. 274.)

5 - 4 - 4 - 5 - 6 Appropriations

Funds appropriated to an agency for expenses of its hospitals, clinics, and laboratories to which student-employees are assigned or attached are available to carry out the provisions of this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 472.)

5 - 4 - 4 - 6 GRADE AND PAY RETENTION (§§ 5361 to 5366)

5 - 4 - 4 - 6 - 1 Definitions

For the purpose of this subchapter—

(1)

“employee” means an employee to whom chapter 51 of this titleapplies, and a prevailing rate employee, as defined by section 5342(a)(2) of this title, whose employment is other than on a temporary or term basis;

(2)

“agency” has the meaning given it by section 5102 of this title;

(3)

“retained grade” means the grade used for determining benefits to which an employee to whom section 5362 of this title applies is entitled;

(4)“rate of basic pay” means—

(A)the rate of basic pay payable to an employee under law or regulations before any deductions or additions of any kind, but including—

(i)

any applicable locality-based comparability payment under section 5304 or similar provision of law;

(ii)

any applicable special pay under section 5305 or similar provision of law; and

(iii)

subject to such regulations as the Office of Personnel Management may prescribe, any applicable existing retained rate of pay established under section 5363 or similar provision of law; and

(B)

in the case of a prevailing rate employee, the scheduled rate of pay determined under section 5343;

(5)

“covered pay schedule” means the General Schedule, any prevailing rate schedule established under subchapter IV of this chapter, or a special occupational pay system under subchapter IX;

(6)

“position subject to this subchapter” means any position under acovered pay schedule;

(7)

“reduction-in-force procedures” means procedures applied in carrying out any reduction in force due to a reorganization, due to lack of funds or curtailment of work, or due to any other factor; and

(8)

“retained rate” means the rate of basic pay to which an employee is entitled under section 5363(b)(2).

(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1218; amended Pub. L. 98–615, title II, § 204(a)(2), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 101–509, title V, § 529 [title I, § 105(b)(1)], Nov. 5, 1990, 104 Stat. 1427, 1448; Pub. L. 103–89, § 3(b)(1)(J), Sept. 30, 1993, 107 Stat. 982; Pub. L. 108–411, title III, § 301(a)(4), Oct. 30, 2004, 118 Stat. 2315.)

5 - 4 - 4 - 6 - 2 Grade retention following a change of positions or reclassification

(a)Any employee—

(1)

who is placed as a result of reduction-in-force procedures from a position subject to this subchapter to another position which is subject to this subchapter and which is in a lower grade than the previous position, and

(2)

who has served for 52 consecutive weeks or more in one or more positions subject to this subchapter at a grade or grades higher than that of the new position,

is entitled, to the extent provided in subsection (c) of this section, to have the grade of the position held immediately before such placement be considered to be the retained grade of the employee in any position he holds for the 2-year period beginning on the date of such placement.

(b)

(1)

Any employee who is in a position subject to this subchapter and whose position has been reduced in grade is entitled, to the extent provided in subsection (c) of this section, to have the grade of such position before reduction be treated as the retained grade of suchemployee for the 2-year period beginning on the date of the reduction in grade.

(2)

The provisions of paragraph (1) of this subsection shall not apply with respect to any reduction in the grade of a position which had not been classified at the higher grade for a continuous period of at least one year immediately before such reduction.

(c)For the 2-year period referred to in subsections (a) and (b) of this section, the retained grade of an employee under such subsection (a) or (b) shall be treated as the grade of the employee’s position for all purposes (including pay and pay administration under this chapter and chapter 55 of this title, retirement and life insurance under chapters 83, 84, and 87 of this title, and eligibility for training and promotion under this title) except—

(1)

for purposes of subsection (a) of this section,

(2)

for purposes of applying any reduction-in-force procedures, or

(3)

for such other purposes as the Office of Personnel Managementmay provide by regulation.

(d)The foregoing provisions of this section shall cease to apply to an employee who—

(1)

has a break in service of one workday or more;

(2)

is demoted (determined without regard to this section) for personal cause or at the employee’s request;

(3)

is placed in, or declines a reasonable offer of, a position the grade of which is equal to or higher than the retained grade; or

(4)

elects in writing to have the benefits of this section terminate.

(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219; amended Pub. L. 98–615, title II, § 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 103–89, § 3(b)(1)(K), Sept. 30, 1993, 107 Stat. 982.)

5 - 4 - 4 - 6 - 3 Pay retention

(a)Any employee—

(1)

who ceases to be entitled to the benefits of section 5362 of this titleby reason of the expiration of the 2-year period of coverage provided under such section;

(2)

who is in a position subject to this subchapter and who is subject to a reduction or termination of a special rate of pay established under section 5305 of this title (or corresponding prior provision of this title);

(3)

who is in a position subject to this subchapter and who (but for this section) would be subject to a reduction in pay under circumstances prescribed by the Office of Personnel Management by regulation to warrant the application of this section; or

(4)

who is in a position subject to this subchapter and who is subject to a reduction or termination of a rate of pay established under subchapter IX of chapter 53;

is entitled to a rate of basic pay in accordance with regulations prescribed by the Office of Personnel Management in conformity with the provisions of this section.

(b)

(1)

(A)

If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is less than or equal to the maximum rate of basic pay payable for the grade of theemployee’s position immediately after the occurrence of the event involved, the employee is entitled to basic pay at the lowest rate of basic pay payable for such grade that equals or exceeds such former rate of basic pay.

(B)

This section shall cease to apply to an employee to whom subparagraph (A) applies once the appropriate rate of basic payhas been determined for such employee under this paragraph.

(2)

(A)If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is greater than the maximumrate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved, theemployee is entitled to basic pay at a rate equal to the lesser of—

(i)

the employee’s former rate of basic pay; or

(ii)

150 percent of the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved,

as adjusted by subparagraph (B).

(B)

A rate to which an employee is entitled under this paragraph shall be increased at the time of any increase in the maximum rate of basic pay payable for the grade of the employee’s position by 50 percent of the dollar amount of each such increase.

(3)

For purposes of this subsection, the term “former rate of basic pay”, as used with respect to an employee in connection with an event described in subsection (a), means the rate of basic pay last received by such employee before the occurrence of such event.

(c)

(1)Notwithstanding any other provision of this section, in the case of an employee who—

(A)

moves to a new official duty station, and

(B)

in conjunction with such move, becomes subject to both a different pay schedule and (disregarding this subsection) the preceding provisions of this section,

this section shall be applied—

(i)

first, by determining the rate of pay to which such employeewould be entitled at the new official duty station based on such employee’s position, grade, and step (or relative position in the pay range) before the move, and

(ii)

then, by applying the provisions of this section that would apply (if any), treating the rate determined under clause (i) as if it were the rate last received by the employee before the application of this section.

(2)

A reduction in an employee’s rate of basic pay resulting from a determination under paragraph (1)(ii) is not a basis for an entitlement under this section.

(3)

The rate of basic pay for an employee who is receiving a retained rate at the time of moving to a new official duty station at which different pay schedules apply shall be subject to regulations prescribed by the Office of Personnel Management consistent with the purposes of this section.

(d)

A retained rate shall be considered part of basic pay for purposes of this subchapter and for purposes of subchapter III of chapter 83, chapters 84 and 87, subchapter V of chapter 55, section 5941, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe. The Office shall, for any purpose other than any of the purposes referred to in the preceding sentence, prescribe by regulation what constitutes basic pay foremployees receiving a retained rate.

(e)This section shall not apply, or shall cease to apply, to an employeewho—

(1)

has a break in service of 1 workday or more;

(2)

is entitled, by operation of this subchapter, chapter 51 or 53, or any other provision of law, to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of basic pay for which is equal to or higher than, the retained rate to which theemployee would otherwise be entitled; or

(3)

is demoted for personal cause or at the employee’s request.

(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219; amended Pub. L. 101–509, title V, § 529 [title I, §§ 101(b)(3)(B), 105(b)(2)], Nov. 5, 1990, 104 Stat. 1427, 1439, 1448; Pub. L. 103–89, § 3(b)(1)(L), Sept. 30, 1993, 107 Stat. 982; Pub. L. 108–411, title III, § 301(a)(5), Oct. 30, 2004, 118 Stat. 2316.)

5 - 4 - 4 - 6 - 4 Remedial actions

Under regulations prescribed by the Office of Personnel Management, the Office may require any agency—

(1)

to report to the Office information with respect to vacancies (including impending vacancies);

(2)

to take such steps as may be appropriate to assure employees receiving benefits under section 5362 or 5363 of this title have the opportunity to obtain necessary qualifications for the selection to positions which would minimize the need for the application of such sections;

(3)

to establish a program under which employees receiving benefits under section 5362 or 5363 of this title are given priority in the consideration for or placement in positions which are equal to their retained grade or pay; and

(4)

to place certain employees, notwithstanding the fact their previous position was in a different agency, but only in circumstances in which the Office determines the exercise of such authority is necessary to carry out the purpose of this section.

(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1220.)

5 - 4 - 4 - 6 - 5 Regulations

(a)

The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.

(b)Under such regulations, the Office may provide for the application of all or portions of the provisions of this subchapter (subject to any conditions or limitations the Office may establish)—

(1)

to any individual reduced to a grade of a covered pay schedule from a position not subject to this subchapter;

(2)

to individuals to whom such provisions do not otherwise apply; and

(3)

to situations the application to which is justified for purposes of carrying out the mission of the agency or agencies involved.

Individuals with respect to whom authority under paragraph (2) may be exercised include individuals who are moved without a break in service of more than 3 days from employment in nonappropriated fund instrumentalities of the Department of Defense or the Coast Guard described in section 2105(c) to employment in the Department of Defense or the Coast Guard, respectively, that is not described in section 2105(c).

(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1220; amended Pub. L. 101–508, title VII, § 7202(f), Nov. 5, 1990, 104 Stat. 1388–336; Pub. L. 108–411, title III, § 301(a)(6), Oct. 30, 2004, 118 Stat. 2317.)

5 - 4 - 4 - 6 - 6 Appeals

(a)

(1)

In the case of the termination of any benefits available to an employee under this subchapter on the grounds such employeedeclined a reasonable offer of a position the grade or pay of which was equal to or greater than his retained grade or pay, such termination may be appealed to the Office of Personnel Management under procedures prescribed by the Office.

(2)Nothing in this subchapter shall be construed to affect the right of any employee to appeal—

(A)

under section 5112(b) or 5346(c) of this title, or otherwise, any reclassification of a position; or

(B)

under procedures prescribed by the Office of Personnel Management, any reduction-in-force action.

(b)For purposes of any appeal procedures (other than those described in subsection (a) of this section) or any grievance procedure negotiated under the provisions of chapter 71 of this title—

(1)

any action which is the basis of an individual’s entitlement to benefits under this subchapter, and

(2)

any termination of any such benefits under this subchapter,

shall not be treated as appealable under such appeals procedures or grievable under such grievance procedure.

(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1221.)

5 - 4 - 4 - 7 MISCELLANEOUS PROVISIONS (§§ 5371 to 5380)

5 - 4 - 4 - 7 - 1 Health care positions

(a)

For the purposes of this section, “health care” means direct patient-care services or services incident to direct patient-care services.

(b)The Office of Personnel Management may, with respect to any employee described in subsection (c), provide that 1 or more provisions of chapter 74 of title 38 shall apply—

(1)

in lieu of any provision of chapter 51 or 61, subchapter V of chapter 55, or any other provision of this chapter; or

(2)

notwithstanding any lack of specific authority for a matter with respect to which chapter 51 or 61, subchapter V of chapter 55, or this chapter, relates.

(c)Authority under subsection (b) may be exercised with respect to any employee holding a position—

(1)

to which chapter 51 applies, excluding any Senior Executive Service position and any position in the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service; and

(2)

which involves health care responsibilities.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, § 5361; renumbered § 5371 and amended Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1221, 1224; Pub. L. 101–509, title V, § 529 [title II, § 205(A)], Nov. 5, 1990, 104 Stat. 1427, 1456; Pub. L. 102–378, § 2(31), Oct. 2, 1992, 106 Stat. 1350.)

5 - 4 - 4 - 7 - 2 Administrative law judges

(a)

For the purposes of this section, the term “administrative law judge” means an administrative law judge appointed under section 3105.

(b)

(1)

(A)

There shall be 3 levels of basic pay for administrative law judges (designated as AL–1, 2, and 3, respectively), and each such judge shall be paid at 1 of those levels, in accordance with the provisions of this section.

(B)

Within level AL–3, there shall be 6 rates of basic pay, designated as AL–3, rates A through F, respectively. Level AL–2 and level AL–1 shall each have 1 rate of basic pay.

(C)

The rate of basic pay for AL–3, rate A, may not be less than 65 percent of the rate of basic pay for level IV of the Executive Schedule, and the rate of basic pay for AL–1 may not exceed the rate for level IV of the Executive Schedule.

(2)

The Office of Personnel Management shall determine, in accordance with procedures which the Office shall by regulation prescribe, the level in which each administrative-law-judge position shall be placed and the qualifications to be required for appointment to each level.

(3)

(A)

Upon appointment to a position in AL–3, an administrative law judge shall be paid at rate A of AL–3, and shall be advanced successively to rates B, C, and D of that level at the beginning of the next pay period following completion of 52 weeks of service in the next lower rate, and to rates E and F of that level at the beginning of the next pay period following completion of 104 weeks of service in the next lower rate.

(B)

The Office of Personnel Management may provide for appointment of an administrative law judge in AL–3 at an advanced rate under such circumstances as the Office may determine appropriate.

(4)

Subject to paragraph (1), effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5303 in the rates of basic pay under the General Schedule, each rate of basic pay for administrative law judges shall be adjusted by an amount determined by the President to be appropriate.

(c)

The Office of Personnel Management shall prescribe regulations necessary to administer this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, § 5362; Pub. L. 95–251, § 2(a)(1), (b)(1), Mar. 27, 1978, 92 Stat. 183; renumbered § 5372 and amended Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1221, 1224; Pub. L. 101–509, title V, § 529 [title I, § 104(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1445; Pub. L. 102–378, § 2(32), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 106–97, § 1, Nov. 12, 1999, 113 Stat. 1322.)

5 - 4 - 4 - 7 - 3 Contract appeals board members

(a)For the purpose of this section—

(1)

the term “contract appeals board member” means a member of an agency board of contract appeals appointed under section 7105(a)(2), (c)(2), or (d)(2) of title 41 or a member of the Civilian Board of Contract Appeals appointed under section 7105(b)(2) of title 41; and

(2)

the term “appeals board” means an agency board of contract appeals established pursuant to section 7105(a)(1), (c)(1), or (d)(1) of title 41.

(b)Rates of basic pay for contract appeals board members shall be as follows:

(1)

Chairman of an appeals board—the rate of basic pay payable for level IV of the Executive Schedule.

(2)

Vice chairman of an appeals board—97 percent of the rate under paragraph (1).

(3)

Other members of an appeals board—94 percent of the rate under paragraph (1).

(c)

Rates of pay taking effect under this section shall be printed in the Federal Register and the Code of Federal Regulations.

(Added Pub. L. 101–509, title V, § 529 [title I, § 104(a)(2)], Nov. 5, 1990, 104 Stat. 1427, 1446; amended Pub. L. 109–163, div. A, title VIII, § 847(f)(1), Jan. 6, 2006, 119 Stat. 3395; Pub. L. 111–350, § 5(a)(9), Jan. 4, 2011, 124 Stat. 3841.)

5 - 4 - 4 - 7 - 4 Administrative appeals judges

(a)For the purpose of this section—

(1)

the term “administrative appeals judge position” means a position the duties of which primarily involve reviewing decisions of administrative law judges appointed under section 3105; and

(2)

the term “agency” means an Executive agency, as defined by section 105, but does not include the Government Accountability Office.

(b)

Subject to such regulations as the Office of Personnel Managementmay prescribe, the head of the agency concerned shall fix the rate of basic pay for each administrative appeals judge position within such agency which is not classified above GS–15 pursuant to section 5108.

(c)A rate of basic pay fixed under this section shall be—

(1)

not less than the minimum rate of basic pay for level AL–3 under section 5372; and

(2)

not greater than the maximum rate of basic pay for level AL–3 under section 5372.

(Added Pub. L. 106–554, § 1(a)(3) [title VI, § 645(a)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A–169; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

5 - 4 - 4 - 7 - 5 Limitation on pay fixed by administrative action

(a)Except as provided in subsection (b) and by the Government Employees Salary Reform Act of 1964 (78 Stat. 400) and notwithstanding the provisions of other statutes, the head of an Executive agency or military department who is authorized to fix by administrative action the annual rate of basic pay for a position or employee may not fix the rate at more than the rate for level IV of the Executive Schedule. This section does not impair the authorities provided by—

(1)

sections 248, 482, 1766, and 1819 of title 12, section 206 of the Bank Conservation Act, sections 2B(b) [1] and 21A(e)(4) [1] of the Federal Home Loan Bank Act, section 2A(i) [1] of the Home Owners’ Loan Act, and sections 5.11 and 5.58 of the Farm Credit Act of 1971;

(2)

section 831b of title 16;

(3)

sections 403a–403c, 403e–403h, and 403j of title 50; 1 or

(4)

 [2] section 4802.

(4)

 2 section 2(a)(7) of the Commodity Exchange Act (7 U.S.C. 2(a)(7)).

(b)

Subsection (a) shall not affect the authority of the Secretary of Defenseor the Secretary of a military department to fix the pay of a civilian employee paid from nonappropriated funds, except that the annual rate of basic pay (including any portion of such pay attributable to comparability with private-sector pay in a locality) of such an employee may not be fixed at a rate greater than the rate for level III of the Executive Schedule.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, § 5363; renumbered § 5373, Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221; Pub. L. 96–70, title III, § 3302(e)(4), Sept. 27, 1979, 93 Stat. 498; Pub. L. 101–73, title VII, § 742(b), title XII, § 1209, Aug. 9, 1989, 103 Stat. 437, 523; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(H)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(4), Sept. 23, 1996, 110 Stat. 2868; Pub. L. 106–65, div. A, title XI, § 1102, Oct. 5, 1999, 113 Stat. 776; Pub. L. 107–123, § 8(d)(1)(C), Jan. 16, 2002, 115 Stat. 2399; Pub. L. 107–171, title X, § 10702(c)(3), May 13, 2002, 116 Stat. 517.)

5 - 4 - 4 - 7 - 6 Miscellaneous positions in the executive branch

The head of the agency concerned shall fix the annual rate of basic pay for each position in the executive branch specifically referred to in, or covered by, a conforming change in statute made by section 305 of the Government Employees Salary Reform Act of 1964 (78 Stat. 422), or other position in the executive branch for which the annual pay is fixed at a rate of $18,500 or more under special provision of statute enacted before August 14, 1964, which is not placed in a level of the Executive Schedule set forth in subchapter II of this chapter, at a rate equal to the pay rate of a grade and step of the General Schedule set forth in section 5332 of this title. The head of the agency concerned shall report each action taken under this section to the Office of Personnel Management and publish a notice thereof in the Federal Register, except when the President determines that the report and publication would be contrary to the interest of national security.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, § 5364; renumbered § 5374 and amended Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1221, 1224.)

5 - 4 - 4 - 7 - 7 Police force of the National Zoological Park

The Secretary of the Smithsonian Institution shall fix the annual rates of basic pay for positions on the police force of the National Zoological Parkas follows:

(1)

Private, not more than the maximum annual rate of basic pay payable for grade GS–7 of the General Schedule.

(2)

Sergeant, not more than the maximum annual rate of basic pay payable for grade GS–8 of the General Schedule.

(3)

Lieutenant, not more than the maximum annual rate of basic pay payable for grade GS–9 of the General Schedule.

(4)

Captain, not more than the maximum annual rate of basic pay payable for grade GS–10 of the General Schedule.

(Added Pub. L. 91–34, § 1(a), June 30, 1969, 83 Stat. 41, § 5365; amended Pub. L. 94–183, § 2(20), Dec. 31, 1975, 89 Stat. 1058; renumbered § 5375, Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221; Pub. L. 101–263, § 1(a), Apr. 4, 1990, 104 Stat. 125; Pub. L. 102–378, § 2(33), Oct. 2, 1992, 106 Stat. 1350.)

5 - 4 - 4 - 7 - 8 Pay for certain senior-level positions

(a)This section applies to—

(1)

positions that are classified above GS–15 pursuant to section 5108; and

(2)

scientific or professional positions established under section 3104;

but does not apply to—

(A)

any Senior Executive Service position under section 3132; or

(B)

any position in the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service under section 3151.

(b)

(1)Subject to such regulations as the Office of Personnel Managementprescribes, the head of the agency concerned shall fix the rate of basic pay for any position within such agency to which this section applies. A rate fixed under this section shall be—

(A)

not less than 120 percent of the minimum rate of basic pay payable for GS–15 of the General Schedule; and

(B)

subject to paragraph (3), not greater than the rate of basic pay payable for level III of the Executive Schedule.

The payment of a rate of basic pay under this section shall not be subject to the pay limitation of section 5306(e) or 5373.

(2)

Subject to paragraph (1), effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5303 in the rates of pay under the General Schedule, each rate of pay established under this section for positions within an agency shall be adjusted by such amount as the head of such agency considers appropriate.

(3)

In the case of an agency which has a performance appraisal system which, as designed and applied, is certified under section 5307(d) as making meaningful distinctions based on relative performance, paragraph (1)(B) shall apply as if the reference to “level III” were a reference to “level II”.

(4)

No employee may suffer a reduction in pay by reason of transfer from an agency with an applicable maximum rate of pay prescribed under paragraph (3) to an agency with an applicable maximum rate of pay prescribed under paragraph (1)(B).

(Added Pub. L. 101–509, title V, § 529 [title I, § 102(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1443; amended Pub. L. 110–372, § 2(b), Oct. 8, 2008, 122 Stat. 4044.)

5 - 4 - 4 - 7 - 9 Pay authority for critical positions

(a)For the purpose of this section—

(1)

the term “agency” has the meaning given it by section 5102; and

(2)the term “position” means—

(A)

a position to which chapter 51 applies, including a position in the Senior Executive Service or the Federal Bureau of Investigationand Drug Enforcement Administration Senior Executive Service;

(B)

a position under the Executive Schedule under sections 5312–5317;

(C)

a position to which section 5372 applies (or would apply, but for this section);

(D)

a position to which section 5372a applies (or would apply, but for this section);

(E)

a position established under section 3104;

(F)

a position in a category as to which a designation is in effect under subsection (i); and

(G)

a position at the Federal Bureau of Investigation, the primary duties and responsibilities of which relate to intelligence functions (as determined by the Director of the Federal Bureau of Investigation).

(b)Authority under this section—

(1)may be granted or exercised only with respect to a position—

(A)

which requires expertise of an extremely high level in a scientific, technical, professional, or administrative field; and

(B)

which is critical to the agency’s successful accomplishment of an important mission; and

(2)

may be granted or exercised only to the extent necessary to recruit or retain an individual exceptionally well qualified for the position.

(c)

The Office of Personnel Management, in consultation with the Office of Management and Budget, may, upon the request of the head of anagency, grant authority to fix the rate of basic pay for 1 or more positions in such agency in accordance with this section.

(d)

(1)

The rate of basic pay fixed under this section by an agency head may not be less than the rate of basic pay (including any comparability payments) which would then otherwise be payable for the positioninvolved if this section had never been enacted.

(2)

Basic pay may not be fixed under this section at a rate greater than the rate payable for level I of the Executive Schedule, except upon written approval of the President.

(e)The authority to fix the rate of basic pay under this section for a position shall terminate—

(1)

whenever the Office of Personnel Management determines (in accordance with such procedures and subject to such terms or conditions as such Office by regulation prescribes) that 1 or more of the requirements of subsection (b) are no longer met; or

(2)

as of such date as such Office may otherwise specify, except that termination under this paragraph may not take effect before the authority has been available for such position for at least 1 calendar year.

(f)

The Office of Personnel Management may not authorize the exercise of authority under this section with respect to more than 800 positions at any time, of which not more than 30 may, at any such time, be positions the rate of basic pay for which would otherwise be determined under subchapter II.

(g)

The Office of Personnel Management shall consult with the Office of Management and Budget before making any decision to grant or terminate any authority under this section.

(h)The Office of Personnel Management shall report to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate each year, in writing, on the operation of this section. Each report under this subsection shall include—

(1)

the number of positions, in the aggregate and by agency, for which higher rates of pay were authorized or paid under this section during any part of the period covered by such report; and

(2)

the name of each employee to whom a higher rate of pay was paid under this section during any portion of the period covered by such report, the rate on [1] rates paid under this section during such period, the dates between which each such higher rate was paid, and the rate or rates that would have been paid but for this section.

(i)

(1)

For the purpose of this subsection, the term “position” means the work, consisting of the duties and responsibilities, assignable to an employee, except that such term does not include any position under subsection (a)(2)(A)–(E).

(2)

At the request of an agency head, the President may designate 1 or more categories of positions within such agency to be treated, for purposes of this section, as positions within the meaning of subsection (a)(2).

(Added Pub. L. 101–509, title V, § 529 [title I, § 103(a)], Nov. 5, 1990, 104 Stat. 1427, 1444; amended Pub. L. 102–378, § 2(34), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 108–411, title I, § 102, Oct. 30, 2004, 118 Stat. 2311; Pub. L. 108–447, div. B, title I, § 115, Dec. 8, 2004, 118 Stat. 2870.)

5 - 4 - 4 - 7 - 10 Police forces of the Bureau of Engraving and Printing and the United States Mint

(a)

The Secretary of the Department of the Treasury, or his designee, in his sole discretion shall fix the rates of basic pay for positions within the police forces of the United States Mint and the Bureau of Engraving and Printingwithout regard to the pay provisions of title 5, United States Code, except that no entry-level police officer shall receive basic pay for a calendar year that is less than the basic rate of pay for General Schedule GS–7 and no executive security official shall receive basic compensation for a calendar year that exceeds the basic rate of pay for General Schedule GS–15.

(b)

For the purpose of this section, the term “police forces of the Bureau of Engraving and Printing and the United States Mint” means the employees of the Department of the Treasury who are appointed, under the authority of the Secretary of the Treasury, as police officers for the protection of the Bureau of Engraving and Printing and the United States Mint buildings and property.

(Added Pub. L. 101–509, title V, § 529 [title I, § 109(a)(1)(A)], Nov. 5, 1990, 104 Stat. 1427, 1451; amended Pub. L. 104–52, title V, § 521, Nov. 19, 1995, 109 Stat. 494; Pub. L. 105–61, title I, § 121, Oct. 10, 1997, 111 Stat. 1289.)

5 - 4 - 4 - 7 - 11 Student loan repayments

(a)

(1)For the purpose of this section—

(A)

the term “agency” means an agency under subparagraph (A), (B), (C), (D), or (E) of section 4101(1) of this title, the Architect of the Capitol, the Botanic Garden, and the Office of Congressional Accessibility Services; and

(B)the term “student loan” means—

(i)

a loan made, insured, or guaranteed under part B of title IV of the Higher Education Act of 1965 (20 U.S.C. 1071 et seq.);

(ii)

a loan made under part D or E of title IV of the Higher Education Act of 1965 (20 U.S.C. 1087a et seq., 1087aa et seq.); and

(iii)

a health education assistance loan made or insured under part A of title VII of the Public Health Service Act (42 U.S.C. 292et seq.) or under part E of title VIII of such Act (42 U.S.C. 297a et seq.).

(2)

An employee shall be ineligible for benefits under this section if the employee occupies a position that is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character.

(b)

(1)

The head of an agency may, in order to recruit or retain highly qualified personnel, establish a program under which the agency may agree to repay (by direct payments on behalf of the employee) any student loan previously taken out by such employee.

(2)Payments under this section shall be made subject to such terms, limitations, or conditions as may be mutually agreed to by the agencyand employee concerned, except that the amount paid by an agencyunder this section may not exceed—

(A)

$10,000 for any employee in any calendar year; or

(B)

a total of $60,000 in the case of any employee.

(3)

Nothing in this section shall be considered to authorize an agencyto pay any amount to reimburse an employee for any repayments made by such employee prior to the agency’s entering into an agreement under this section with such employee.

(c)

(1)An employee selected to receive benefits under this section must agree in writing, before receiving any such benefit, that the employee will—

(A)

remain in the service of the agency for a period specified in the agreement (not less than 3 years), unless involuntarily separated; and

(B)

if separated involuntarily on account of misconduct, or voluntarily, before the end of the period specified in the agreement, repay to the Government the amount of any benefits received by such employee from that agency under this section.

(2)

The payment agreed to under paragraph (1)(B) of this subsection may not be required of an employee who leaves the service of such employee’s agency voluntarily to enter into the service of any other agency unless the head of the agency that authorized the benefits notifies the employee before the effective date of such employee’s entrance into the service of the other agency that payment will be required under this subsection.

(3)If an employee who is involuntarily separated on account of misconduct or who (excluding any employee relieved of liability under paragraph (2) of this subsection) is voluntarily separated before completing the required period of service fails to repay the amount agreed to under paragraph (1)(B) of this subsection, a sum equal to the amount outstanding is recoverable by the Government from the employee (or such employee’s estate, if applicable) by—

(A)

setoff against accrued pay, compensation, amount of retirement credit, or other amount due the employee from the Government; and

(B)

such other method as is provided by law for the recovery of amounts owing to the Government.

The head of the agency concerned may waive, in whole or in part, a right of recovery under this subsection if it is shown that recovery would be against equity and good conscience or against the public interest.

(4)

Any amount repaid by, or recovered from, an individual (or an estate) under this subsection shall be credited to the appropriation account from which the amount involved was originally paid. Any amount so credited shall be merged with other sums in such account and shall be available for the same purposes and period, and subject to the same limitations (if any), as the sums with which merged.

(d)An employee receiving benefits under this section from an agency shall be ineligible for continued benefits under this section from such agency if the employee—

(1)

separates from such agency; or

(2)

does not maintain an acceptable level of performance, as determined under standards and procedures which the agency head shall by regulation prescribe.

(e)

In selecting employees to receive benefits under this section, an agencyshall, consistent with the merit system principles set forth in paragraphs (1) and (2) of section 2301(b) of this title, take into consideration the need to maintain a balanced workforce in which women and members of racial and ethnic minority groups are appropriately represented in Government service.

(f)

Any benefit under this section shall be in addition to basic pay and any other form of compensation otherwise payable to the employee involved.

(g)

The Director of the Office of Personnel Management, after consultation with heads of a representative number and variety of agencies and any other consultation which the Director considers appropriate, shall prescribe regulations containing such standards and requirements as the Director considers necessary to provide for reasonable uniformity among programs under this section.

(h)

(1)Each head of an agency shall maintain, and annually submit to the Director of the Office of Personnel Management, information with respect to the agency on—

(A)

the number of Federal employees selected to receive benefits under this section;

(B)

the job classifications for the recipients; and

(C)

the cost to the Federal Government of providing the benefits.

(2)

The Director of the Office of Personnel Management shall prepare, and annually submit to Congress, a report containing the information submitted under paragraph (1), and information identifying the agencies that have provided benefits under this section.

(Added Pub. L. 101–510, div. A, title XII, § 1206(b)(1), Nov. 5, 1990, 104 Stat. 1659; amended Pub. L. 106–398, § 1 [[div. A], title XI, § 1122(a), (b), (d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–316; Pub. L. 108–123, § 2, Nov. 11, 2003, 117 Stat. 1345; Pub. L. 108–136, div. A, title XI, § 1123(a), Nov. 24, 2003, 117 Stat. 1637; Pub. L. 110–437, title V, § 502, Oct. 20, 2008, 122 Stat. 4997.)

Repealed Oct. 2, 1992,

5 - 4 - 4 - 8 PAY FOR THE SENIOR EXECUTIVE SERVICE (§§ 5381 to 5385)

5 - 4 - 4 - 8 - 1 Definitions

For the purpose of this subchapter, “agency”, “Senior Executive Service position”, “career appointee”, and “senior executive” have the meanings set forth in section 3132(a) of this title.

(Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1171; amended Pub. L. 101–136, title VI, § 625(b), Nov. 3, 1989, 103 Stat. 823.)

5 - 4 - 4 - 8 - 2 Establishment of rates of pay for the Senior Executive Service

(a)

Subject to regulations prescribed by the Office of Personnel Management, there shall be established a range of rates of basic pay for the Senior Executive Service, and each senior executive shall be paid at one of the rates within the range, based on individual performance, contribution to the agency’s performance, or both, as determined under a rigorous performance management system. The lowest rate of the range shall not be less than the minimum rate of basic pay payable under section 5376, and the highest rate, for any position under this system or an equivalent system as determined by the President’s Pay Agent designated under section 5304(d), shall not exceed the rate for level III of the Executive Schedule. The payment of the rates shall not be subject to the pay limitation of section 5306(e) or 5373.

(b)

Notwithstanding the provisions of subsection (a), the applicable maximum shall be level II of the Executive Schedule for any agency that is certified under section 5307 as having a performance appraisal system which, as designed and applied, makes meaningful distinctions based on relative performance.

(c)

No employee may suffer a reduction in pay by reason of transfer from an agency with an applicable maximum rate of pay prescribed under subsection (b) to an agency with an applicable maximum rate of pay prescribed under subsection (a).

(Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1171; amended Pub. L. 101–509, title V, § 529 [title I, § 101(b)(4)(B), (6)(A), (9)(I)], Nov. 5, 1990, 104 Stat. 1427, 1439, 1440, 1442; Pub. L. 108–136, div. A, title XI, § 1125(a)(2), Nov. 24, 2003, 117 Stat. 1638.)

5 - 4 - 4 - 8 - 3 Setting individual senior executive pay

(a)

Each appointing authority shall determine, in accordance with criteria established by the Office of Personnel Management, which of the rates within a range established under section 5382 shall be paid to each senior executive under such appointing authority.

(b)

Members of the Senior Executive Service shall be subject to the limitation under section 5307.

(c)

Except as provided in regulations prescribed by the Office under section 5385, the rate of basic pay for any senior executive may not be adjusted more than once during any 12-month period.

(d)

The rate of basic pay for any career appointee may be reduced from any rate of basic pay to any lower rate of basic pay only if the career appointee receives a written notice of the reduction at least 15 days in advance of the reduction.

(e)

(1)This subsection applies to—

(A)

any individual who, after serving at least 5 years of current continuous service in 1 or more positions in the competitive service, is appointed, without any break in service, as a career appointee; and

(B)any individual who—

(i)

holds a position which is converted from the competitive service to a career reserved position in the Senior ExecutiveService; and

(ii)

as of the conversion date, has at least 5 years of current continuous service in 1 or more positions in the competitive service.

(2)

(A)

The initial rate of pay for a career appointee who is appointed under the circumstances described in paragraph (1)(A) may not be less than the rate of basic pay last payable to that individual immediately before being so appointed.

(B)

The initial rate of pay for a career appointee following the position’s conversion (as described in paragraph (1)(B)) may not be less than the rate of basic pay last payable to that individual immediately before such position’s conversion.

(Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1171; amended Pub. L. 96–166, § 3, Dec. 29, 1979, 93 Stat. 1273; Pub. L. 98–615, title III, § 305, Nov. 8, 1984, 98 Stat. 3219; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(7)], Nov. 5, 1990, 104 Stat. 1427, 1440; Pub. L. 102–175, § 2, Dec. 2, 1991, 105 Stat. 1222; Pub. L. 102–378, § 2(35), Oct. 2, 1992, 106 Stat. 1351; Pub. L. 108–136, div. A, title XI, § 1125(a)(3), Nov. 24, 2003, 117 Stat. 1639.)

5 - 4 - 4 - 8 - 4 Performance awards in the Senior Executive Service

(a)

(1)

To encourage excellence in performance by career appointees, performance awards shall be paid to career appointees in accordance with the provisions of this section.

(2)

Such awards shall be paid in a lump sum and shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 4507 of this title.

(b)

(1)

No performance award under this section shall be paid to any career appointee whose performance was determined to be less than fully successful at the time of the appointee’s most recent performance appraisal and rating under subchapter II of chapter 43 of this title.

(2)

The amount of a performance award under this section shall be determined by the agency head but may not be less than 5 percent nor more than 20 percent of the career appointee’s rate of basic pay.

(3)The aggregate amount of performance awards paid under this section by an agency during any fiscal year may not exceed the greater of—

(A)

an amount equal to 10 percent of the aggregate amount of basic pay paid to career appointees in such agency during the preceding fiscal year; or

(B)

an amount equal to 20 percent of the average of the annual rates of basic pay paid to career appointees in such agency during the preceding fiscal year.

(c)

(1)

Performance awards paid by any agency under this section shall be based on recommendations by performance review boards established by such agency under section 4314 of this title.

(2)

not [1] less than a majority of the members of any review board referred to in paragraph (1) shall be career appointees whenever making recommendations under such paragraph with respect to acareer appointee. The requirement of the preceding sentence shall not apply in any case in which the Office of Personnel Managementdetermines that there exists an insufficient number of career appointees available to comply with the requirement.

(d)

The Office of Personnel Management may issue guidance to agencies concerning the proportion of Senior Executive Service salary expenses that may be appropriately applied to payment of performance awards and the distribution of awards.

(Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1172; amended Pub. L. 98–615, title III, § 302, Nov. 8, 1984, 98 Stat. 3217; Pub. L. 101–136, title VI, § 625(a), Nov. 3, 1989, 103 Stat. 822; Pub. L. 105–277, div. A, § 101(h) [title VI, § 632(a)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–523.)

5 - 4 - 4 - 8 - 5 Regulations

The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.

(Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1172.)

5 - 4 - 4 - 9 SPECIAL OCCUPATIONAL PAY SYSTEMS (§§ 5391 to 5392)

5 - 4 - 4 - 9 - 1 Definitions

For the purposes of this subchapter, “agency”, “employee”, and “position” have the meanings given them by section 5102.

(Added Pub. L. 101–509, title V, § 529 [title I, § 105(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1447.)

5 - 4 - 4 - 9 - 2 Establishment of special occupational pay systems

(a)

Authority under this section may be exercised with respect to any occupation or group of occupations to which subchapter III applies (or would apply but for this section).

(b)

Subject to subsection (a), the President’s pay agent (as referred to in section 5304(d)) may establish one or more special occupational pay systems for any positions within occupations or groups of occupations that the pay agent determines, for reasons of good administration, should not be classified under chapter 51 or subject to subchapter III.

(c)In establishing special occupational pay systems, the pay agent shall—

(1)

identify occupations or groups of occupations for which chapter 51 and subchapter III do not function adequately;

(2)

consider alternative approaches for determining the pay for employees in positions in such occupations or groups of occupations;

(3)

give thorough consideration to the views of agencies employing such employees and labor organizations representing such employees, as well as other interested parties;

(4)

publish a proposed plan for determining the pay of such employees in the Federal Register;

(5)

conduct one or more public hearings;

(6)

provide each House of Congress with a report at least 90 days in advance of the date the system is to take effect setting forth the details of the proposed plan; and

(7)

not later than 30 days before the date the system is to take effect, publish in the Federal Register the details of the final plan for the special occupational pay system.

(d)A special occupational pay system may not—

(1)

provide for a waiver of any law, rule, or regulation that could not be waived under section 4703(c); or

(2)

provide a rate of basic pay for any employee in excess of the rate payable for level V of the Executive Schedule.

(e)

Subject to subsection (d)(2), effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5303 in the rates of pay under the General Schedule, each rate of pay established under this section shall be adjusted by such amount as the Office considers appropriate.

(Added Pub. L. 101–509, title V, § 529 [title I, § 105(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1448.)

5 - 4 - 4 - 3 HUMAN CAPITAL PERFORMANCE FUND (§§ 5401 to 5408)

5 - 4 - 4 - 3 - 1 Purpose

The purpose of this chapter is to promote, through the creation of a Human Capital Performance Fund, greater performance in the Federal Government. Monies from the Fund will be used to reward agencies’ highest performing and most valuable employees. This Fund will offer Federal managers a new tool to recognize employee performance that is critical to the achievement of agency missions.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1642.)

5 - 4 - 4 - 3 - 2 Definitions

For the purpose of this chapter—

(1)

“agency” means an Executive agency under section 105, but does not include the Government Accountability Office;

(2)“employee” includes—

(A)

an individual paid under a statutory pay system defined in section 5302(1);

(B)

a prevailing rate employee, as defined in section 5342(a)(2); and

(C)

a category of employees included by the Office of Personnel Management following the review of an agency plan under section 5403(b)(1);

but does not include—

(i)

an individual paid at an annual rate of basic pay for a level of the Executive Schedule, under subchapter II of chapter 53, or at a rate provided for one of those levels under another provision of law;

(ii)

a member of the Senior Executive Service paid under subchapter VIII of chapter 53, or an equivalent system;

(iii)

an administrative law judge paid under section 5372;

(iv)

a contract appeals board member paid under section 5372a;

(v)

an administrative appeals judge paid under section 5372b; and

(vi)

an individual in a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; and

(3)

“Office” means the Office of Personnel Management.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1642; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

5 - 4 - 4 - 3 - 3 Human Capital Performance Fund

(a)

There is hereby established the Human Capital Performance Fund, to be administered by the Office for the purpose of this chapter.

(b)

(1)

(A)

An agency shall submit a plan as described in section 5406to be eligible for consideration by the Office for an allocation under this section. An allocation shall be made only upon approval by the Office of an agency’s plan.

(B)

(i)

After the reduction for training required under section 5408, ninety percent of the remaining amount appropriated to the Fund may be allocated by the Office to the agencies. Of the amount to be allocated, an agency’s pro rata distribution may not exceed its pro rata share of Executive branch payroll.

(ii)

If the Office does not allocate an agency’s full pro rata share, the undistributed amount remaining from that share will become available for distribution to other agencies, as provided in subparagraph (C).

(C)

(i)

After the reduction for training under section 5408, ten percent of the remaining amount appropriated to the Fund, as well as the amount of the pro rata share not distributed because of an agency’s failure to submit a satisfactory plan, shall be allocated among agencies with exceptionally high-quality plans.

(ii)

An agency with an exceptionally high-quality plan is eligible to receive an additional distribution in addition to its full pro rata distribution.

(2)

Each agency is required to provide to the Office such payroll information as the Office specifies necessary to determine the Executive branch payroll.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1642.)

5 - 4 - 4 - 3 - 4 Human capital performance payments

(a)

(1)

Notwithstanding any other provision of law, the Office may authorize an agency to provide human capital performance payments to individual employees based on exceptional performance contributing to the achievement of the agency mission.

(2)

The number of employees in an agency receiving payments from the Fund, in any year, shall not be more than the number equal to 15 percent of the agency’s average total civilian full- and part-time permanent employment for the previous fiscal year.

(b)

(1)

A human capital performance payment provided to an individual employee from the Fund, in any year, shall not exceed 10 percent of the employee’s rate of basic pay.

(2)

The aggregate of an employee’s rate of basic pay, adjusted by any locality-based comparability payments, and human capital performance pay, as defined by regulation, may not exceed the rate of basic pay for Executive Level IV in any year.

(3)

Any human capital performance payment provided to an employee from the Fund is in addition to any annual pay adjustment (under section 5303 or any similar provision of law) and any locality-based comparability payment that may apply.

(c)

No monies from the Human Capital Performance Fund may be used to pay for a new position, for other performance-related payments, or for recruitment or retention incentives paid under sections 5753 and 5754.

(d)

(1)

An agency may finance initial human capital performance payments using monies from the Human Capital Performance Fund, as available.

(2)

In subsequent years, continuation of previously awarded human capital performance payments shall be financed from other agencyfunds available for salaries and expenses.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1643.)

5 - 4 - 4 - 3 - 5 Regulations

The Office shall issue such regulations as it determines to be necessary for the administration of this chapter, including the administration of the Fund. The Office’s regulations shall include criteria governing—

(1)

an agency plan under section 5406;

(2)

the allocation of monies from the Fund to agencies;

(3)

the nature, extent, duration, and adjustment of, and approval processes for, payments to individual employees under this chapter;

(4)

the relationship to this chapter of agency performance management systems;

(5)

training of supervisors, managers, and other individuals involved in the process of making performance distinctions; and

(6)

the circumstances under which funds may be allocated by the Officeto an agency in amounts below or in excess of the agency’s pro rata share.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1643.)

5 - 4 - 4 - 3 - 6 Agency plan

(a)To be eligible for consideration by the Office for an allocation under this section, an agency shall—

(1)develop a plan that incorporates the following elements:

(A)

adherence to merit principles set forth in section 2301;

(B)

a fair, credible, and transparent employee performance appraisal system;

(C)

a link between the pay-for-performance system, the employee performance appraisal system, and the agency’s strategic plan;

(D)

a means for ensuring employee involvement in the design and implementation of the system;

(E)

adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the pay-for-performance system;

(F)

a process for ensuring ongoing performance feedback and dialogue between supervisors, managers, and employeesthroughout the appraisal period, and setting timetables for review;

(G)

effective safeguards to ensure that the management of the system is fair and equitable and based on employeeperformance; and

(H)

a means for ensuring that adequate agency resources are allocated for the design, implementation, and administration of the pay-for-performance system;

(2)

upon approval, receive an allocation of funding from the Office;

(3)

make payments to individual employees in accordance with theagency’s approved plan; and

(4)

provide such information to the Office regarding payments made and use of funds received under this section as the Officemay specify.

(b)

The Office, in consultation with the Chief Human Capital Officers Council, shall review and approve an agency’s plan before the agency is eligible to receive an allocation of funding from the Office.

(c)

The Chief Human Capital Officers Council shall include in its annual report to Congress under section 1303(d) of the Homeland Security Act of 2002 an evaluation of the formulation and implementation of agency performance management systems.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1644.)

5 - 4 - 4 - 3 - 7 Nature of payment

Any payment to an employee under this section shall be part of the employee’s basic pay for the purposes of subchapter III of chapter 83, and chapters 84 and 87, and for such other purposes (other than chapter 75) as the Office shall determine by regulation.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1645.)

5 - 4 - 4 - 3 - 8 Appropriations

There is authorized to be appropriated $500,000,000 for fiscal year 2004, and, for each subsequent fiscal year, such sums as may be necessary to carry out the provisions of this chapter. In the first year of implementation, up to 10 percent of the amount appropriated to the Fund shall be available to participating agencies to train supervisors, managers, and other individuals involved in the appraisal process on using performance management systems to make meaningful distinctions in employeeperformance and on the use of the Fund.

(Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1645.)

5 - 4 - 4 - 4 PAY ADMINISTRATION (§§ 5501 to 5597)

5 - 4 - 4 - 4 - 1 GENERAL PROVISIONS (§§ 5501 to 5509)

5 - 4 - 4 - 4 - 2 WITHHOLDING PAY (§§ 5511 to 5520a)

5 - 4 - 4 - 4 - 3 ADVANCEMENT, ALLOTMENT,
AND ASSIGNMENT OF PAY (§§ 5521 to 5527)

5 - 4 - 4 - 4 - 4 DUAL PAY AND DUAL EMPLOYMENT (§§ 5531 to 5538)

5 - 4 - 4 - 4 - 5 PREMIUM PAY (§§ 5541 to 5550b)

5 - 4 - 4 - 4 - 6 PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE (§§ 5551 to 5553)

5 - 4 - 4 - 4 - 7 PAYMENTS TO MISSING EMPLOYEES (§ 5561)

5 - 4 - 4 - 4 - 8 SETTLEMENT OF ACCOUNTS (§§ 5581 to 5584)

5 - 4 - 4 - 4 - 9 SEVERANCE PAY AND BACK PAY (§§ 5591 to 5597)

5 - 4 - 4 - 5 TRAVEL, TRANSPORTATION, AND SUBSISTENCE (§§ 5701 to 5761)

5 - 4 - 4 - 5 - 1 TRAVEL AND SUBSISTENCE EXPENSES; MILEAGE ALLOWANCES (§§ 5701 to 5711)

5 - 4 - 4 - 5 - 1 - 1 Definitions

5 - 4 - 4 - 5 - 1 - 2 Per diem; employees traveling on official business

5 - 4 - 4 - 5 - 1 - 3 Per diem, travel, and transportation expenses; experts and consultants; individuals serving without pay

5 - 4 - 4 - 5 - 1 - 4 Mileage and related allowances

5 - 4 - 4 - 5 - 1 - 5 Advancements and deductions

5 - 4 - 4 - 5 - 1 - 6 Allowable travel expenses

5 - 4 - 4 - 5 - 1 - 7 Subsistence and travel expenses for threatened law enforcement personnel

5 - 4 - 4 - 5 - 1 - 8 Interview expenses

5 - 4 - 4 - 5 - 1 - 9 Reimbursement for taxes incurred on money received
for travel expenses

5 - 4 - 4 - 5 - 1 - 10 Regulations and reports

5 - 4 - 4 - 5 - 1 - 11 Adherence to fire safety guidelines in establishing rates
and discounts for lodging expenses

5 - 4 - 4 - 5 - 1 - 12 Effect on other statutes

5 - 4 - 4 - 5 - 1 - 13 Air evacuation patients: furnished subsistence

5 - 4 - 4 - 5 - 1 - 14 Authority for travel expenses test programs

5 - 4 - 4 - 5 - 1 - 15 Authority for telework travel expenses test programs

5 - 4 - 4 - 5 - 2 TRAVEL AND TRANSPORTATION EXPENSES; NEW APPOINTEES, STUDENT TRAINEES, AND TRANSFERRED EMPLOYEES (§§ 5721 to 5739)

5 - 4 - 4 - 5 - 2 - 1 Definitions

5 - 4 - 4 - 5 - 2 - 2 Travel and transportation expenses of new appointees; posts of duty outside the continental United States

5 - 4 - 4 - 5 - 2 - 3 Travel and transportation expenses of new appointees and student trainees

5 - 4 - 4 - 5 - 2 - 4 Travel and transportation expenses of employees transferred; advancement of funds; reimbursement on commuted basis

5 - 4 - 4 - 5 - 2 - 5 Relocation expenses of employees transferred or reemployed

5 - 4 - 4 - 5 - 2 - 6 Taxes on reimbursements for travel, transportation, and relocation expenses of employees transferred

5 - 4 - 4 - 5 - 2 - 7 Relocation services

5 - 4 - 4 - 5 - 2 - 8 Transportation and moving expenses for immediate family of certain deceased Federal employees

5 - 4 - 4 - 5 - 2 - 9 Transportation expenses; employees assigned to danger areas

5 - 4 - 4 - 5 - 2 - 10 Storage expenses; household goods and personal effects

5 - 4 - 4 - 5 - 2 - 11 Transportation of motor vehicles

5 - 4 - 4 - 5 - 2 - 12 Travel and transportation expenses; vacation leave

5 - 4 - 4 - 5 - 2 - 13 Transportation expenses; prior return of family

5 - 4 - 4 - 5 - 2 - 14 Funds available

5 - 4 - 4 - 5 - 2 - 15 Expenses limited to lowest first-class rate

5 - 4 - 4 - 5 - 2 - 16 General average contribution; payment or reimbursement

5 - 4 - 4 - 5 - 2 - 17 Expeditious travel

5 - 4 - 4 - 5 - 2 - 18 Travel, transportation, and relocation expenses of employees transferred from the Postal Service

5 - 4 - 4 - 5 - 2 - 19 Travel, transportation, and relocation expenses of employees transferring to the United States Postal Service

5 - 4 - 4 - 5 - 2 - 20 Travel, transportation, and relocation expenses of certain nonappropriated fund employees

5 - 4 - 4 - 5 - 2 - 21 Relocation expenses of an employee who is performing an extended assignment

5 - 4 - 4 - 5 - 2 - 22 Employees temporarily deployed in contingency operations

5 - 4 - 4 - 5 - 2 - 23 Regulations

5 - 4 - 4 - 5 - 2 - 24 Authority for relocation expenses test programs

5 - 4 - 4 - 5 - 3 TRANSPORTATION OF REMAINS, DEPENDENTS,
AND EFFECTS (§§ 5741 to 5742)

5 - 4 - 4 - 5 - 3 - 1 General prohibition

5 - 4 - 4 - 5 - 3 - 2 Transportation of remains, dependents, and effects; death occurring away from official station or abroad

5 - 4 - 4 - 5 - 4 MISCELLANEOUS PROVISIONS (§§ 5751 to 5761)

5 - 4 - 4 - 5 - 4 - 1 Travel expenses of witnesses

5 - 4 - 4 - 5 - 4 - 2 Travel expenses of Senior Executive Service candidates

5 - 4 - 4 - 5 - 4 - 3 Recruitment and relocation bonuses

5 - 4 - 4 - 5 - 4 - 4 Retention bonuses

5 - 4 - 4 - 5 - 4 - 5 Supervisory differentials

5 - 4 - 4 - 5 - 4 - 6 Home marketing incentive payment

5 - 4 - 4 - 5 - 4 - 7 Payment of expenses to obtain professional credentials

5 - 4 - 4 - 5 - 4 - 8 Extended assignment incentive

5 - 4 - 4 - 5 - 4 - 9 Retention and relocation bonuses for the Federal Bureau of Investigation

5 - 4 - 4 - 5 - 4 - 10 Travel and transportation allowances: transportation of family members incident to the repatriation of employees held captive

5 - 4 - 4 - 5 - 4 - 11 Foreign language proficiency pay awards for the Federal Bureau of Investigation

5 - 4 - 4 - 6 ALLOWANCES (§§ 5901 to 5949)

5 - 4 - 4 - 6 - 1 UNIFORMS (§§ 5901 to 5903)

5 - 4 - 4 - 6 - 1 - 1 Uniform allowances

5 - 4 - 4 - 6 - 1 - 2 Increase in maximum uniform allowance

5 - 4 - 4 - 6 - 1 - 3 Regulations

5 - 4 - 4 - 6 - 2 QUARTERS (§§ 5911 to 5913)

5 - 4 - 4 - 6 - 2 - 1 Quarters and facilities; employees in the United States

5 - 4 - 4 - 6 - 2 - 2 Quarters in Government owned or rented buildings; employees in foreign countries

5 - 4 - 4 - 6 - 2 - 3 Official residence expenses

5 - 4 - 4 - 6 - 3 OVERSEAS DIFFERENTIALS AND ALLOWANCES (§§ 5921 to 5928)

5 - 4 - 4 - 6 - 3 - 1 Definitions

5 - 4 - 4 - 6 - 3 - 2 General provisions

5 - 4 - 4 - 6 - 3 - 3 Quarters allowances

5 - 4 - 4 - 6 - 3 - 4 Cost-of-living allowances

5 - 4 - 4 - 6 - 3 - 5 Post differentials

5 - 4 - 4 - 6 - 3 - 6 Compensatory time off at certain posts in foreign areas

5 - 4 - 4 - 6 - 3 - 7 Advances of pay

5 - 4 - 4 - 6 - 3 - 8 Danger pay allowance

5 - 4 - 4 - 6 - 4 MISCELLANEOUS ALLOWANCES (§§ 5941 to 5949)

5 - 4 - 4 - 6 - 4 - 1 Allowances based on living costs and conditions of environment; employees stationed outside continental United States or in Alaska

5 - 4 - 4 - 6 - 4 - 2 Allowance based on duty at remote worksites

5 - 4 - 4 - 6 - 4 - 3 Separate maintenance allowance for duty at Johnston Island

5 - 4 - 4 - 6 - 4 - 4 Foreign currency appreciation allowances

5 - 4 - 4 - 6 - 4 - 5 Notary public commission expenses

5 - 4 - 4 - 6 - 4 - 6 Membership fees; expenses of attendance at meetings; limitations

5 - 4 - 4 - 6 - 4 - 7 Quarters, subsistence, and allowances for employees of the Corps of Engineers, Department of the Army, engaged in floating plant operations

5 - 4 - 4 - 6 - 4 - 8 Physicians comparability allowances

5 - 4 - 4 - 6 - 4 - 9 Hostile fire pay

Repealed Nov. 22, 1983,

5 - 4 - 5 Attendance and Leave (§§ 6101 to 6506)

5 - 4 - 5 - 1 HOURS OF WORK (§§ 6101 to 6133)

5 - 4 - 5 - 1 - 1 GENERAL PROVISIONS (§§ 6101 to 6106)

5 - 4 - 5 - 1 - 1 - 1 Basic 40-hour workweek; work schedules; regulations

5 - 4 - 5 - 1 - 1 - 2 Holidays

5 - 4 - 5 - 1 - 1 - 3 Holidays; daily, hourly, and piece-work basis employees

5 - 4 - 5 - 1 - 1 - 4 Closing of Executive departments

5 - 4 - 5 - 1 - 1 - 5 Time clocks; restrictions

Repealed Aug. 19, 1972,

5 - 4 - 5 - 1 - 2 FLEXIBLE AND COMPRESSED WORK SCHEDULES (§§ 6120 to 6133)

5 - 4 - 5 - 1 - 2 - 1 Purpose

5 - 4 - 5 - 1 - 2 - 2 Definitions

5 - 4 - 5 - 1 - 2 - 3 Flexible schedules; agencies authorized to use

5 - 4 - 5 - 1 - 2 - 4 Flexible schedules; computation of premium pay

5 - 4 - 5 - 1 - 2 - 5 Flexible schedules; holidays

5 - 4 - 5 - 1 - 2 - 6 Flexible schedules; time-recording devices

5 - 4 - 5 - 1 - 2 - 7 Flexible schedules; credit hours; accumulation and compensation

5 - 4 - 5 - 1 - 2 - 8 Compressed schedules; agencies authorized to use

5 - 4 - 5 - 1 - 2 - 9 Compressed schedules; computation of premium pay

5 - 4 - 5 - 1 - 2 - 10 Administration of leave and retirement provisions

5 - 4 - 5 - 1 - 2 - 11 Application of programs in the case of
collective bargaining agreements

5 - 4 - 5 - 1 - 2 - 12 Criteria and review

5 - 4 - 5 - 1 - 2 - 13 Prohibition of coercion

5 - 4 - 5 - 1 - 2 - 14 Regulations; technical assistance; program review

5 - 4 - 5 - 2 LEAVE (§§ 6301 to 6391)

5 - 4 - 5 - 2 - 1 ANNUAL AND SICK LEAVE (§§ 6301 to 6312)

5 - 4 - 5 - 2 - 2 OTHER PAID LEAVE (§§ 6321 to 6329c)

5 - 4 - 5 - 2 - 3 VOLUNTARY TRANSFERS OF LEAVE (§§ 6331 to 6340)

5 - 4 - 5 - 2 - 4 VOLUNTARY LEAVE BANK PROGRAM (§§ 6361 to 6373)

5 - 4 - 5 - 2 - 5 FAMILY AND MEDICAL LEAVE (§§ 6381 to 6387)

5 - 4 - 5 - 2 - 6 LEAVE TRANSFER IN DISASTERS AND EMERGENCIES (§ 6391)

5 - 4 - 5 - 3 TELEWORK (§§ 6501 to 6506)

5 - 4 - 5 - 3 - 1 Definitions

5 - 4 - 5 - 3 - 2 Executive agencies telework requirement

5 - 4 - 5 - 3 - 3 Training and monitoring

5 - 4 - 5 - 3 - 4 Policy and support

5 - 4 - 5 - 3 - 5 Telework Managing Officer

5 - 4 - 5 - 3 - 6 Reports

5 - 4 - 6 Labor-Management and Employee Relations (§§ 7101 to 7906)

5 - 4 - 6 - 1 LABOR-MANAGEMENT RELATIONS (§§ 7101 to 7151)

5 - 4 - 6 - 1 - 1 GENERAL PROVISIONS (§§ 7101 to 7106)

5 - 4 - 6 - 1 - 1 - 1 Findings and purpose

(a)The Congress finds that—

(1)experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them—

(A)

safeguards the public interest,

(B)

contributes to the effective conduct of public business, and

(C)

facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment; and

(2)

the public interest demands the highest standards of employeeperformance and the continued development and implementation of modern and progressive work practices to facilitate and improve employeeperformance and the efficient accomplishment of the operations of the Government.

Therefore, labor organizations and collective bargaining in the civil service are in the public interest.

(b)

It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1192.)

5 - 4 - 6 - 1 - 1 - 2 Employees’ rights

Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right—

(1)

to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and

(2)

to engage in collective bargaining with respect to conditions of employmentthrough representatives chosen by employees under this chapter.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1192.)

5 - 4 - 6 - 1 - 1 - 3 Definitions; application

(a)For the purpose of this chapter—

(1)

“person” means an individual, labor organization, or agency;

(2)“employee” means an individual—

(A)

employed in an agency; or

(B)

whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority;

but does not include—

(i)

an alien or noncitizen of the United States who occupies a position outside the United States;

(ii)

a member of the uniformed services;

(iii)

a supervisor or a management official;

(iv)

an officer or employee in the Foreign Service of the United Statesemployed in the Department of State, the International CommunicationAgency, the Agency for International Development, the Department of Agriculture, or the Department of Commerce; or

(v)

any person who participates in a strike in violation of section 7311 of this title;

(3)“agency” means an Executive agency (including a nonappropriated fund instrumentality described in section 2105(c) of this title and the Veterans’ Canteen Service, Department of Veterans Affairs), the Library of Congress, the Government Publishing Office, and the Smithsonian Institution [1] but does not include—

(A)

the Government Accountability Office;

(B)

the Federal Bureau of Investigation;

(C)

the Central Intelligence Agency;

(D)

the National Security Agency;

(E)

the Tennessee Valley Authority;

(F)

the Federal Labor Relations Authority;

(G)

the Federal Service Impasses Panel; or

(H)

the United States Secret Service and the United States Secret ServiceUniformed Division.

(4)“labor organization” means an organization composed in whole or in part of employees, in which employees participate and pay dues, and which has as a purpose the dealing with an agency concerning grievances and conditions of employment, but does not include—

(A)

an organization which, by its constitution, bylaws, tacit agreement among its members, or otherwise, denies membership because of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;

(B)

an organization which advocates the overthrow of the constitutional form of government of the United States;

(C)

an organization sponsored by an agency; or

(D)

an organization which participates in the conduct of a strike against the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike;

(5)

“dues” means dues, fees, and assessments;

(6)

“Authority” means the Federal Labor Relations Authority described in section 7104(a) of this title;

(7)

“Panel” means the Federal Service Impasses Panel described in section 7119(c) of this title;

(8)

“collective bargaining agreement” means an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter;

(9)“grievance” means any complaint—

(A)

by any employee concerning any matter relating to the employment of the employee;

(B)

by any labor organization concerning any matter relating to the employment of any employee; or

(C)by any employee, labor organization, or agency concerning—

(i)

the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or

(ii)

any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment;

(10)

“supervisor” means an individual employed by an agency havingauthority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or removeemployees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term “supervisor” includes only those individuals who devote a preponderance of their employment time to exercising such authority;

(11)

“management official” means an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency;

(12)

“collective bargaining” means the performance of the mutual obligation of the representative of an agency and the exclusive representative ofemployees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession;

(13)

“confidential employee” means an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations;

(14)“conditions of employment” means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters—

(A)

relating to political activities prohibited under subchapter III of chapter 73 of this title;

(B)

relating to the classification of any position; or

(C)

to the extent such matters are specifically provided for by Federal statute;

(15)“professional employee” means—

(A)an employee engaged in the performance of work—

(i)

requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities);

(ii)

requiring the consistent exercise of discretion and judgment in its performance;

(iii)

which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work); and

(iv)

which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time; or

(B)

an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A)(i) of this paragraph and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee described in subparagraph (A) of this paragraph;

(16)“exclusive representative” means any labor organization which—

(A)

is certified as the exclusive representative of employees in an appropriate unit pursuant to section 7111 of this title; or

(B)was recognized by an agency immediately before the effective date of this chapter as the exclusive representative of employees in an appropriate unit—

(i)

on the basis of an election, or

(ii)

on any basis other than an election,

and continues to be so recognized in accordance with the provisions of this chapter;

(17)

“firefighter” means any employee engaged in the performance of work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment; and

(18)

“United States” means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.

(b)

(1)The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—

(A)

the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and

(B)

the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

(2)

The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1192; amended Pub. L. 96–465, title II, § 2314(g), Oct. 17, 1980, 94 Stat. 2168; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 103–359, title V, § 501(j), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XVI, § 1634(a), Sept. 23, 1996, 110 Stat. 2752; Pub. L. 105–220, title III, § 341(e), Aug. 7, 1998, 112 Stat. 1092; Pub. L. 105–277, div. G, subdiv. A, title XIV, § 1422(b)(1), Oct. 21, 1998, 112 Stat. 2681–792; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 139], Dec. 21, 2000, 114 Stat. 2763, 2763A–235; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.)

5 - 4 - 6 - 1 - 1 - 4 Federal Labor Relations Authority

(a)

The Federal Labor Relations Authority is composed of three members, not more than 2 of whom may be adherents of the same political party. No member shall engage in any other business or employment or hold another office or position in the Government of the United States except as otherwise provided by law.

(b)

Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office. The President shall designate one member to serve as Chairman of the Authority. The Chairman is the chief executive and administrative officer of the Authority.

(c)A member of the Authority shall be appointed for a term of 5 years. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. The term of any member shall not expire before the earlier of—

(1)

the date on which the member’s successor takes office, or

(2)

the last day of the Congress beginning after the date on which the member’s term of office would (but for this paragraph) expire.

(d)

A vacancy in the Authority shall not impair the right of the remaining members to exercise all of the powers of the Authority.

(e)

The Authority shall make an annual report to the President for transmittal to the Congress which shall include information as to the cases it has heard and the decisions it has rendered.

(f)

(1)

The General Counsel of the Authority shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of theUnited States except as provided by law.

(2)The General Counsel may—

(A)

investigate alleged unfair labor practices under this chapter,

(B)

file and prosecute complaints under this chapter, and

(C)

exercise such other powers of the Authority as the Authority may prescribe.

(3)

The General Counsel shall have direct authority over, and responsibility for, all employees in the office of General Counsel, including employees of the General Counsel in the regional offices of the Authority.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1196; amended Pub. L. 98–224, § 3, Mar. 2, 1984, 98 Stat. 47.)

5 - 4 - 6 - 1 - 1 - 5 Powers and duties of the Authority

(a)

(1)

The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter.

(2)The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority—

(A)

determine the appropriateness of units for labor organizationrepresentation under section 7112 of this title;

(B)

supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit and otherwise administer the provisions of section 7111 of this title relating to the according of exclusive recognition to labor organizations;

(C)

prescribe criteria and resolve issues relating to the granting of national consultation rights under section 7113 of this title;

(D)

prescribe criteria and resolve issues relating to determining compelling need for agency rules or regulations under section 7117(b) of this title;

(E)

resolves issues relating to the duty to bargain in good faith under section 7117(c) of this title;

(F)

prescribe criteria relating to the granting of consultation rights with respect to conditions of employment under section 7117(d) of this title;

(G)

conduct hearings and resolve complaints of unfair labor practices under section 7118 of this title;

(H)

resolve exceptions to arbitrator’s awards under section 7122 of this title; and

(I)

take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter.

(b)

The Authority shall adopt an official seal which shall be judicially noticed.

(c)

The principal office of the Authority shall be in or about the District of Columbia, but the Authority may meet and exercise any or all of its powers at any time or place. Except as otherwise expressly provided by law, the Authoritymay, by one or more of its members or by such agents as it may designate, make any appropriate inquiry necessary to carry out its duties wherever persons subject to this chapter are located. Any member who participates in the inquiry shall not be disqualified from later participating in a decision of the Authority in any case relating to the inquiry.

(d)

The Authority shall appoint an Executive Director and such regional directors, administrative law judges under section 3105 of this title, and other individuals as it may from time to time find necessary for the proper performance of its functions. The Authority may delegate to officers and employees appointed under this subsection authority to perform such duties and make such expenditures as may be necessary.

(e)

(1)The Authority may delegate to any regional director its authority under this chapter—

(A)

to determine whether a group of employees is an appropriate unit;

(B)

to conduct investigations and to provide for hearings;

(C)

to determine whether a question of representation exists and to direct an election; and

(D)

to supervise or conduct secret ballot elections and certify the results thereof.

(2)

The Authority may delegate to any administrative law judge appointed under subsection (d) of this section its authority under section 7118 of this title to determine whether any person has engaged in or is engaging in an unfair labor practice.

(f)If the Authority delegates any authority to any regional director or administrative law judge to take any action pursuant to subsection (e) of this section, the Authority may, upon application by any interested person filed within 60 days after the date of the action, review such action, but the review shall not, unless specifically ordered by the Authority, operate as a stay of action. The Authority may affirm, modify, or reverse any action reviewed under this subsection. If the Authority does not undertake to grant review of the action under this subsection within 60 days after the later of—

(1)

the date of the action; or

(2)

the date of the filing of any application under this subsection for review of the action;

the action shall become the action of the Authority at the end of such 60-day period.

(g)In order to carry out its functions under this chapter, the Authority may—

(1)

hold hearings;

(2)

administer oaths, take the testimony or deposition of any person under oath, and issue subpenas as provided in section 7132 of this title; and

(3)

may require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the policies of this chapter.

(h)

Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Authority may appear for theAuthority and represent the Authority in any civil action brought in connection with any function carried out by the Authority pursuant to this title or as otherwise authorized by law.

(i)

In the exercise of the functions of the Authority under this title, the Authoritymay request from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or policy directives issued by the Office of Personnel Management in connection with any matter before the Authority.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1196.)

5 - 4 - 6 - 1 - 1 - 6 Management rights

(a)Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—

(1)

to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and

(2)in accordance with applicable laws—

(A)

to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

(B)

to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;

(C)with respect to filling positions, to make selections for appointments from—

(i)

among properly ranked and certified candidates for promotion; or

(ii)

any other appropriate source; and

(D)

to take whatever actions may be necessary to carry out the agencymission during emergencies.

(b)Nothing in this section shall preclude any agency and any labor organizationfrom negotiating—

(1)

at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2)

procedures which management officials of the agency will observe in exercising any authority under this section; or

(3)

appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1198.)

5 - 4 - 6 - 1 - 2 RIGHTS AND DUTIES OF AGENCIES AND
LABOR ORGANIZATIONS (§§ 7111 to 7120)

5 - 4 - 6 - 1 - 2 - 1 Exclusive recognition of labor organizations

(a)

An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.

(b)If a petition is filed with the Authority—

(1)by any person alleging—

(A)

in the case of an appropriate unit for which there is no exclusive representative, that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, or

(B)

in the case of an appropriate unit for which there is an exclusive representative, that 30 percent of the employees in the unit allege that the exclusive representative is no longer the representative of the majority of the employees in the unit; or

(2)

by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation;

the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held.

(c)A labor organization which—

(1)

has been designated by at least 10 percent of the employees in the unit specified in any petition filed pursuant to subsection (b) of this section;

(2)

has submitted a valid copy of a current or recently expired collective bargaining agreement for the unit; or

(3)

has submitted other evidence that it is the exclusive representative of theemployees involved;

may intervene with respect to a petition filed pursuant to subsection (b) of this section and shall be placed on the ballot of any election under such subsection (b) with respect to the petition.

(d)The Authority shall determine who is eligible to vote in any election under this section and shall establish rules governing any such election, which shall include rules allowing employees eligible to vote the opportunity to choose—

(1)

from labor organizations on the ballot, that labor organization which theemployees wish to have represent them; or

(2)

not to be represented by a labor organization.

In any election in which no choice on the ballot receives a majority of the votes cast, a runoff election shall be conducted between the two choices receiving the highest number of votes. A labor organization which receives the majority of the votes cast in an election shall be certified by theAuthority as the exclusive representative.

(e)

A labor organization seeking exclusive recognition shall submit to theAuthority and the agency involved a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives.

(f)Exclusive recognition shall not be accorded to a labor organization—

(1)

if the Authority determines that the labor organization is subject to corrupt influences or influences opposed to democratic principles;

(2)

in the case of a petition filed pursuant to subsection (b)(1)(A) of this section, if there is not credible evidence that at least 30 percent of the employees in the unit specified in the petition wish to be represented for the purpose of collective bargaining by the labor organization seeking exclusive recognition;

(3)if there is then in effect a lawful written collective bargaining agreementbetween the agency involved and an exclusive representative (other than thelabor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless—

(A)

the collective bargaining agreement has been in effect for more than 3 years, or

(B)

the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement; or

(4)

if the Authority has, within the previous 12 calendar months, conducted a secret ballot election for the unit described in any petition under this section and in such election a majority of the employees voting chose a labor organization for certification as the unit’s exclusive representative.

(g)

Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules or decisions of the Authority.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1199.)

5 - 4 - 6 - 1 - 2 - 2 Determination of appropriate units for labor organization representation

(a)

The Authority shall determine the appropriateness of any unit. The Authorityshall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.

(b)A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes—

(1)

except as provided under section 7135(a)(2) of this title, any management official or supervisor;

(2)

a confidential employee;

(3)

an employee engaged in personnel work in other than a purely clerical capacity;

(4)

an employee engaged in administering the provisions of this chapter;

(5)

both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit;

(6)

any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or

(7)

any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.

(c)Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization—

(1)

which represents other individuals to whom such provision applies; or

(2)

which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies.

(d)

Two or more units which are in an agency and for which a labor organizationis the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority shall certify the labor organization as the exclusive representative of the new larger unit.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1200; amended Pub. L. 102–378, § 2(54), Oct. 2, 1992, 106 Stat. 1354.)

5 - 4 - 6 - 1 - 2 - 3 National consultation rights

(a)

If, in connection with any agency, no labor organization has been accorded exclusive recognition on an agency basis, a labor organization which is the exclusive representative of a substantial number of the employees of theagency, as determined in accordance with criteria prescribed by the Authority,shall be granted national consultation rights by the agency. National consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to any labor organization’s eligibility for, or continuation of, national consultation rights shall be subject to determination by the Authority.

(b)

(1)Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall—

(A)

be informed of any substantive change in conditions of employmentproposed by the agency, and

(B)

be permitted reasonable time to present its views and recommendations regarding the changes.

(2)If any views or recommendations are presented under paragraph (1) of this subsection to an agency by any labor organization—

(A)

the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and

(B)

the agency shall provide the labor organization a written statement of the reasons for taking the final action.

(c)

Nothing in this section shall be construed to limit the right of any agency or exclusive representative to engage in collective bargaining.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1201; amended Pub. L. 102–378, § 2(55), Oct. 2, 1992, 106 Stat. 1354.)

5 - 4 - 6 - 1 - 2 - 4 Representation rights and duties

(a)

(1)

A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.

(2)An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—

(A)

any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or

(B)any examination of an employee in the unit by a representative of theagency in connection with an investigation if—

(i)

the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii)

the employee requests representation.

(3)

Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection.

(4)

Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. In addition, the agency and the exclusive representative may determine appropriate techniques, consistent with the provisions of section 7119 of this title, to assist in any negotiation.

(5)The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from—

(A)

being represented by an attorney or other representative, other than the exclusive representative, of the employee’s own choosing in anygrievance or appeal action; or

(B)

exercising grievance or appellate rights established by law, rule, or regulation;

except in the case of grievance or appeal procedures negotiated under this chapter.

(b)The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation—

(1)

to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;

(2)

to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment;

(3)

to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;

(4)in the case of an agency, to furnish to the exclusive representativeinvolved, or its authorized representative, upon request and, to the extent not prohibited by law, data—

(A)

which is normally maintained by the agency in the regular course of business;

(B)

which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C)

which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and

(5)

if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.

(c)

(1)

An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.

(2)

The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision).

(3)

If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation.

(4)

A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1202.)

5 - 4 - 6 - 1 - 2 - 5 Allotments to representatives

(a)

If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employeeamounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.

(b)An allotment under subsection (a) of this section for the deduction of dueswith respect to any employee shall terminate when—

(1)

the agreement between the agency and the exclusive representativeinvolved ceases to be applicable to the employee; or

(2)

the employee is suspended or expelled from membership in the exclusive representative.

(c)

(1)

Subject to paragraph (2) of this subsection, if a petition has been filed with the Authority by a labor organization alleging that 10 percent of theemployees in an appropriate unit in an agency have membership in the labor organization, the Authority shall investigate the petition to determine its validity. Upon certification by the Authority of the validity of the petition, the agency shall have a duty to negotiate with the labor organization solely concerning the deduction of dues of the labor organization from the pay of the members of the labor organization who are employees in the unit and who make a voluntary allotment for such purpose.

(2)

(A)

The provisions of paragraph (1) of this subsection shall not apply in the case of any appropriate unit for which there is an exclusive representative.

(B)

Any agreement under paragraph (1) of this subsection between a labor organization and an agency with respect to an appropriate unit shall be null and void upon the certification of an exclusive representative of the unit.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1203.)

5 - 4 - 6 - 1 - 2 - 6 Unfair labor practices

(a)For the purpose of this chapter, it shall be an unfair labor practice for an agency—

(1)

to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2)

to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;

(3)

to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;

(4)

to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter;

(5)

to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

(6)

to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter;

(7)

to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; or

(8)

to otherwise fail or refuse to comply with any provision of this chapter.

(b)For the purpose of this chapter, it shall be an unfair labor practice for a labor organization—

(1)

to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2)

to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter;

(3)

to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or productivity as an employee or the discharge of the member’s duties as an employee;

(4)

to discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;

(5)

to refuse to consult or negotiate in good faith with an agency as required by this chapter;

(6)

to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter;

(7)

(A)

to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or

(B)

to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity; or

(8)

to otherwise fail or refuse to comply with any provision of this chapter.

Nothing in paragraph (7) of this subsection shall result in any informational picketing which does not interfere with an agency’s operations being considered as an unfair labor practice.

(c)For the purpose of this chapter it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by such exclusive representative except for failure—

(1)

to meet reasonable occupational standards uniformly required for admission, or

(2)

to tender dues uniformly required as a condition of acquiring and retaining membership.

This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter.

(d)

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

(e)The expression of any personal view, argument, opinion or the making of any statement which—

(1)

publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election,

(2)

corrects the record with respect to any false or misleading statement made by any person, or

(3)

informs employees of the Government’s policy relating to labor-management relations and representation,

shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions, (A) constitute an unfair labor practice under any provision of this chapter, or (B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1204.)

5 - 4 - 6 - 1 - 2 - 7 Duty to bargain in good faith; compelling need; duty to consult

(a)

(1)

Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.

(2)

The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.

(3)

Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable.

(b)

(1)

In any case of collective bargaining in which an exclusive representativealleges that no compelling need exists for any rule or regulation referred to in subsection (a)(3) of this section which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority, whether such a compelling need exists.

(2)For the purpose of this section, a compelling need shall be determined not to exist for any rule or regulation only if—

(A)

the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist; or

(B)

the Authority determines that a compelling need for a rule or regulation does not exist.

(3)

A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall be expedited to the extent practicable and shall not include the General Counsel as a party.

(4)

The agency, or primary national subdivision, as the case may be, which issued the rule or regulation shall be a necessary party at any hearing under this subsection.

(c)

(1)

Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive representativealleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection.

(2)The exclusive representative may, on or before the 15th day after the date on which the agency first makes the allegation referred to in paragraph (1) of this subsection, institute an appeal under this subsection by—

(A)

filing a petition with the Authority; and

(B)

furnishing a copy of the petition to the head of the agency.

(3)On or before the 30th day after the date of the receipt by the head of the agency of the copy of the petition under paragraph (2)(B) of this subsection, the agency shall—

(A)file with the Authority a statement—

(i)

withdrawing the allegation; or

(ii)

setting forth in full its reasons supporting the allegation; and

(B)

furnish a copy of such statement to the exclusive representative.

(4)

On or before the 15th day after the date of the receipt by the exclusive representative of a copy of a statement under paragraph (3)(B) of this subsection, the exclusive representative shall file with the Authority its response to the statement.

(5)

A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall not include the General Counsel as a party.

(6)

The Authority shall expedite proceedings under this subsection to the extent practicable and shall issue to the exclusive representative and to theagency a written decision on the allegation and specific reasons therefor at the earliest practicable date.

(d)

(1)

A labor organization which is the exclusive representative of a substantial number of employees, determined in accordance with criteria prescribed by the Authority, shall be granted consultation rights by any agency with respect to any Government-wide rule or regulation issued by the agency effecting any substantive change in any condition of employment. Such consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to a labor organization’s eligibility for, or continuation of, such consultation rights shall be subject to determination by the Authority.

(2)A labor organization having consultation rights under paragraph (1) of this subsection shall—

(A)

be informed of any substantive change in conditions of employmentproposed by the agency, and

(B)

shall be permitted reasonable time to present its views and recommendations regarding the changes.

(3)If any views or recommendations are presented under paragraph (2) of this subsection to an agency by any labor organization—

(A)

the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and

(B)

the agency shall provide the labor organization a written statement of the reasons for taking the final action.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1205.)

5 - 4 - 6 - 1 - 2 - 8 Prevention of unfair labor practices

(a)

(1)

If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon theagency or labor organization a complaint. In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a complaint.

(2)Any complaint under paragraph (1) of this subsection shall contain a notice—

(A)

of the charge;

(B)

that a hearing will be held before the Authority (or any member thereof or before an individual employed by the authority and designated for such purpose); and

(C)

of the time and place fixed for the hearing.

(3)

The labor organization or agency involved shall have the right to file an answer to the original and any amended complaint and to appear in person or otherwise and give testimony at the time and place fixed in the complaint for the hearing.

(4)

(A)

Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.

(B)If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of—

(i)

any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or

(ii)

any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period,

the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice.

(5)

The General Counsel may prescribe regulations providing for informal methods by which the alleged unfair labor practice may be resolved prior to the issuance of a complaint.

(6)

The Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) shall conduct a hearing on the complaint not earlier than 5 days after the date on which the complaint is served. In the discretion of the individual or individuals conducting the hearing, any person involved may be allowed to intervene in the hearing and to present testimony. Any such hearing shall, to the extent practicable, be conducted in accordance with the provisions of subchapter II of chapter 5 of this title, except that the parties shall not be bound by rules of evidence, whether statutory, common law, or adopted by a court. A transcript shall be kept of the hearing. After such a hearing the Authority, in its discretion, may upon notice receive further evidence or hear argument.

(7)If the Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) determines after any hearing on a complaint under paragraph (5) of this subsection that the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, then the individual or individuals conducting the hearing shall state in writing their findings of fact and shall issue and cause to be served on the agency or labor organization an order—

(A)

to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;

(B)

requiring the parties to renegotiate a collective bargaining agreementin accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;

(C)

requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or

(D)

including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.

If any such order requires reinstatement of an employee with backpay, backpay may be required of the agency (as provided in section 5596 of this title) or of the labor organization, as the case may be, which is found to have engaged in the unfair labor practice involved.

(8)

If the individual or individuals conducting the hearing determine that the preponderance of the evidence received fails to demonstrate that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, the individual or individuals shall state in writing their findings of fact and shall issue an order dismissing the complaint.

(b)

In connection with any matter before the Authority in any proceeding under this section, the Authority may request, in accordance with the provisions of section 7105(i) of this title, from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or other policy directives issued by the Office of Personnel Management.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1207.)

5 - 4 - 6 - 1 - 2 - 9 Negotiation impasses; Federal Service Impasses Panel

(a)

The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what manner it shall provide services and assistance.

(b)If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse—

(1)

either party may request the Federal Service Impasses Panel to consider the matter, or

(2)

the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the Panel.

(c)

(1)

The Federal Service Impasses Panel is an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.

(2)

The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations.

(3)

Of the original members of the Panel, 2 members shall be appointed for a term of 1 year, 2 members shall be appointed for a term of 3 years, and the Chairman and the remaining members shall be appointed for a term of 5 years. Thereafter each member shall be appointed for a term of 5 years, except that an individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. Any member of the Panel may be removed by the President.

(4)

The Panel may appoint an Executive Director and any other individuals it may from time to time find necessary for the proper performance of its duties. Each member of the Panel who is not an employee (as defined in section 2105 of this title) is entitled to pay at a rate equal to the daily equivalent of the maximum annual rate of basic pay then currently paid under the General Schedule for each day he is engaged in the performance of official business of the Panel, including travel time, and is entitled to travel expenses as provided under section 5703 of this title.

(5)

(A)The Panel or its designee shall promptly investigate any impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and shall either—

(i)

recommend to the parties procedures for the resolution of the impasse; or

(ii)

assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose of this section.

(B)If the parties do not arrive at a settlement after assistance by the Panel under subparagraph (A) of this paragraph, the Panel may—

(i)

hold hearings;

(ii)

administer oaths, take the testimony or deposition of any personunder oath, and issue subpenas as provided in section 7132 of this title; and

(iii)

take whatever action is necessary and not inconsistent with this chapter to resolve the impasse.

(C)

Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties agree otherwise.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1208.)

5 - 4 - 6 - 1 - 2 - 10 Standards of conduct for labor organizations

(a)An agency shall only accord recognition to a labor organization that is free from corrupt influences and influences opposed to basic democratic principles. Except as provided in subsection (b) of this section, an organization is not required to prove that it is free from such influences if it is subject to governing requirements adopted by the organization or by a national or international labor organization or federation of labor organizations with which it is affiliated, or in which it participates, containing explicit and detailed provisions to which it subscribes calling for—

(1)

the maintenance of democratic procedures and practices including provisions for periodic elections to be conducted subject to recognized safeguards and provisions defining and securing the right of individual members to participate in the affairs of the organization, to receive fair and equal treatment under the governing rules of the organization, and to receive fair process in disciplinary proceedings;

(2)

the exclusion from office in the organization of persons affiliated with communist or other totalitarian movements and persons identified with corrupt influences;

(3)

the prohibition of business or financial interests on the part of organization officers and agents which conflict with their duty to the organization and its members; and

(4)

the maintenance of fiscal integrity in the conduct of the affairs of the organization, including provisions for accounting and financial controls and regular financial reports or summaries to be made available to members.

(b)Notwithstanding the fact that a labor organization has adopted or subscribed to standards of conduct as provided in subsection (a) of this section, the organization is required to furnish evidence of its freedom from corrupt influences or influences opposed to basic democratic principles if there is reasonable cause to believe that—

(1)

the organization has been suspended or expelled from, or is subject to other sanction, by a parent labor organization, or federation of organizations with which it had been affiliated, because it has demonstrated an unwillingness or inability to comply with governing requirements comparable in purpose to those required by subsection (a) of this section; or

(2)

the organization is in fact subject to influences that would preclude recognition under this chapter.

(c)

A labor organization which has or seeks recognition as a representative ofemployees under this chapter shall file financial and other reports with the Assistant Secretary of Labor for Labor Management Relations, provide for bonding of officials and employees of the organization, and comply with trusteeship and election standards.

(d)

The Assistant Secretary shall prescribe such regulations as are necessary to carry out the purposes of this section. Such regulations shall conform generally to the principles applied to labor organizations in the private sector. Complaints of violations of this section shall be filed with the Assistant Secretary. In any matter arising under this section, the Assistant Secretary may require a labor organization to cease and desist from violations of this section and require it to take such actions as he considers appropriate to carry out the policies of this section.

(e)

This chapter does not authorize participation in the management of a labor organization or acting as a representative of a labor organization by a management official, a supervisor, or a confidential employee, except as specifically provided in this chapter, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee.

(f)In the case of any labor organization which by omission or commission has willfully and intentionally, with regard to any strike, work stoppage, or slowdown, violated section 7116(b)(7) of this title, the Authority shall, upon an appropriate finding by the Authority of such violation—

(1)

revoke the exclusive recognition status of the labor organization, which shall then immediately cease to be legally entitled and obligated to representemployees in the unit; or

(2)

take any other appropriate disciplinary action.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1210.)

5 - 4 - 6 - 1 - 3 GRIEVANCES, APPEALS, AND REVIEW (§§ 7121 to 7123)

5 - 4 - 6 - 1 - 3 - 1 Grievance procedures

(a)

(1)

Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement ofgrievances, including questions of arbitrability. Except as provided in subsections (d), (e), and (g) of this section, the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.

(2)

Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.

(b)

(1)Any negotiated grievance procedure referred to in subsection (a) of this section shall—

(A)

be fair and simple,

(B)

provide for expeditious processing, and

(C)include procedures that—

(i)

assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;

(ii)

assure such an employee the right to present a grievance on theemployee’s own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and

(iii)

provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.

(2)

(A)The provisions of a negotiated grievance procedure providing for binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order—

(i)

a stay of any personnel action in a manner similar to the manner described in section 1221(c) with respect to the Merit Systems Protection Board; and

(ii)

the taking, by an agency, of any disciplinary action identified under section 1215(a)(3) that is otherwise within the authority of such agency to take.

(B)

Any employee who is the subject of any disciplinary action ordered under subparagraph (A)(ii) may appeal such action to the same extent and in the same manner as if the agency had taken the disciplinary action absent arbitration.

(c)The preceding subsections of this section shall not apply with respect to any grievance concerning—

(1)

any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);

(2)

retirement, life insurance, or health insurance;

(3)

a suspension or removal under section 7532 of this title;

(4)

any examination, certification, or appointment; or

(5)

the classification of any position which does not result in the reduction in grade or pay of an employee.

(d)

An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure, whichever event occurs first. Selection of the negotiated procedure in no manner prejudices the right of an aggrievedemployee to request the Merit Systems Protection Board to review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission.

(e)

(1)

Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiatedgrievance procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise a matter either under the applicable appellate procedures or under the negotiated grievance procedure at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties’ negotiated grievance procedure, whichever event occurs first.

(2)

In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable.

(f)

In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiatedgrievance procedure, judicial review of an arbitrator’s award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures.

(g)

(1)

This subsection applies with respect to a prohibited personnel practice other than a prohibited personnel practice to which subsection (d) applies.

(2)

An aggrieved employee affected by a prohibited personnel practice described in paragraph (1) may elect not more than one of the remedies described in paragraph (3) with respect thereto. For purposes of the preceding sentence, a determination as to whether a particular remedy has been elected shall be made as set forth under paragraph (4).

(3)The remedies described in this paragraph are as follows:

(A)

An appeal to the Merit Systems Protection Board under section 7701.

(B)

A negotiated grievance procedure under this section.

(C)

Procedures for seeking corrective action under subchapters II and III of chapter 12.

(4)For the purpose of this subsection, a person shall be considered to have elected—

(A)

the remedy described in paragraph (3)(A) if such person has timely filed a notice of appeal under the applicable appellate procedures;

(B)

the remedy described in paragraph (3)(B) if such person has timely filed a grievance in writing, in accordance with the provisions of the parties’ negotiated procedure; or

(C)

the remedy described in paragraph (3)(C) if such person has sought corrective action from the Office of Special Counsel by making an allegation under section 1214(a)(1).

(h)

Settlements and awards under this chapter shall be subject to the limitations in section 5596(b)(4) of this title.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1211; amended Pub. L. 103–424, § 9, Oct. 29, 1994, 108 Stat. 4365; Pub. L. 105–261, div. A, title XI, § 1104(b), Oct. 17, 1998, 112 Stat. 2142.)

5 - 4 - 6 - 1 - 3 - 2 Exceptions to arbitral awards

(a)Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator’s award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient—

(1)

because it is contrary to any law, rule, or regulation; or

(2)

on other grounds similar to those applied by Federal courts in private sector labor-management relations;

the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations.

(b)

If no exception to an arbitrator’s award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the actions required by an arbitrator’s final award. The award may include the payment of backpay (as provided in section 5596 of this title).

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1212; amended Pub. L. 98–224, § 4, Mar. 2, 1984, 98 Stat. 48.)

5 - 4 - 6 - 1 - 3 - 3 Judicial review; enforcement

(a)Any person aggrieved by any final order of the Authority other than an order under—

(1)

section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or

(2)

section 7112 of this title (involving an appropriate unit determination),

may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia.

(b)

The Authority may petition any appropriate United States court of appeals for the enforcement of any order of the Authority and for appropriate temporary relief or restraining order.

(c)

Upon the filing of a petition under subsection (a) of this section for judicial review or under subsection (b) of this section for enforcement, the Authorityshall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of the petition, the court shall cause notice thereof to be served to the parties involved, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief (including a temporary restraining order) it considers just and proper, and may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of theAuthority. The filing of a petition under subsection (a) or (b) of this section shall not operate as a stay of the Authority’s order unless the court specifically orders the stay. Review of the Authority’s order shall be on the record in accordance with section 706 of this title. No objection that has not been urged before theAuthority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the Authority with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any person applies to the court for leave to adduce additional evidence and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the Authority, or its designee, the court may order the additional evidence to be taken before the Authority, or its designee, and to be made a part of the record. The Authority may modify its findings as to the facts, or make new findings by reason of additional evidence so taken and filed. TheAuthority shall file its modified or new findings, which, with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The Authority shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the judgment and decree shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28.

(d)

The Authority may, upon issuance of a complaint as provided in section 7118 of this title charging that any person has engaged in or is engaging in an unfair labor practice, petition any United States district court within any district in which the unfair labor practice in question is alleged to have occurred or in which such person resides or transacts business for appropriate temporary relief (including a restraining order). Upon the filing of the petition, the court shall cause notice thereof to be served upon the person, and thereupon shall have jurisdiction to grant any temporary relief (including a temporary restraining order) it considers just and proper. A court shall not grant any temporary relief under this section if it would interfere with the ability of the agency to carry out its essential functions or if the Authority fails to establish probable cause that an unfair labor practice is being committed.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1213.)

5 - 4 - 6 - 1 - 4 ADMINISTRATIVE AND OTHER PROVISIONS (§§ 7131 to 7151)

5 - 4 - 6 - 1 - 4 - 1 Official time

(a)

Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number ofemployees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.

(b)

Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status.

(c)

Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

(d)Except as provided in the preceding subsections of this section—

(1)

any employee representing an exclusive representative, or

(2)

in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,

shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1214.)

5 - 4 - 6 - 1 - 4 - 2 Subpenas

(a)Any member of the Authority, the General Counsel, or the Panel, any administrative law judge appointed by the Authority under section 3105 of this title, and any employee of the Authority designated by the Authority may—

(1)

issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States; and

(2)

administer oaths, take or order the taking of depositions, order responses to written interrogatories, examine witnesses, and receive evidence.

No subpena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency or between an agency and the Office of Personnel Management.

(b)

In the case of contumacy or failure to obey a subpena issued under subsection (a)(1) of this section, the United States district court for the judicial district in which the person to whom the subpena is addressed resides or is served may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt thereof.

(c)

Witnesses (whether appearing voluntarily or under subpena) shall be paid the same fee and mileage allowances which are paid subpenaed witnesses in the courts of the United States.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1214.)

5 - 4 - 6 - 1 - 4 - 3 Compilation and publication of data

(a)

The Authority shall maintain a file of its proceedings and copies of all available agreements and arbitration decisions, and shall publish the texts of its decisions and the actions taken by the Panel under section 7119 of this title.

(b)

All files maintained under subsection (a) of this section shall be open to inspection and reproduction in accordance with the provisions of sections 552and 552a of this title.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1215.)

5 - 4 - 6 - 1 - 4 - 4 Regulations

The Authority, the General Counsel, the Federal Mediation and Conciliation Service, the Assistant Secretary of Labor for Labor Management Relations, and thePanel shall each prescribe rules and regulations to carry out the provisions of this chapter applicable to each of them, respectively. Provisions of subchapter II of chapter 5 of this title shall be applicable to the issuance, revision, or repeal of any such rule or regulation.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1215.)

5 - 4 - 6 - 1 - 4 - 5 Continuation of existing laws, recognitions, agreements, and procedures

(a)Nothing contained in this chapter shall preclude—

(1)

the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees, which is entered into before the effective date of this chapter; or

(2)

the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials orsupervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter.

(b)

Policies, regulations, and procedures established under and decisions issued under Executive Orders 11491, 11616, 11636, 11787, and 11838, or under any other Executive order, as in effect on the effective date of this chapter, shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of this chapter or by regulations or decisions issued pursuant to this chapter.

(Added Pub. L. 95–454, title VII, § 701, Oct. 13, 1978, 92 Stat. 1215.)

5 - 4 - 6 - 2 ANTIDISCRIMINATION; RIGHT TO PETITION CONGRESS (§§ 7201 to 7211)

5 - 4 - 6 - 2 - 1 ANTIDISCRIMINATION IN EMPLOYMENT (§§ 7201 to 7204)

5 - 4 - 6 - 2 - 1 - 1 Antidiscrimination policy; minority recruitment program

(a)For the purpose of this section—

(1)

“underrepresentation” means a situation in which the number of members of a minority group designation (determined by the Equal Employment Opportunity Commission in consultation with the Office of Personnel Management, on the basis of the policy set forth in subsection (b) of this section) within a category of civil service employment constitutes a lower percentage of the total number of employees within the employment category than the percentage that the minority constituted within the labor force of the United States, as determined under the most recent decennial or mid-decade census, or current population survey, under title 13, and

(2)“category of civil service employment” means—

(A)

each grade of the General Schedule described in section 5104 of this title;

(B)

each position subject to subchapter IV of chapter 53 of this title;

(C)

such occupational, professional, or other groupings (including occupational series) within the categories established under subparagraphs (A) and (B) of this paragraph as the Office determines appropriate.

(b)

It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.

(c)Not later than 180 days after the date of the enactment of the Civil Service Reform Act of 1978, the Office of Personnel Management shall, by regulation, implement a minority recruitment program which shall provide, to the maximum extent practicable—

(1)

that each Executive agency conduct a continuing program for the recruitment of members of minorities for positions in the agency to carry out the policy set forth in subsection (b) in a manner designed to eliminate underrepresentation of minorities in the various categories of civil service employment within the Federal service, with special efforts directed at recruiting in minority communities, in educational institutions, and from other sources from which minorities can be recruited; and

(2)that the Office conduct a continuing program of—

(A)

assistance to agencies in carrying out programs under paragraph (1) of this subsection, and

(B)

evaluation and oversight and such recruitment programs to determine their effectiveness in eliminating such minority underrepresentation.

(d)Not later than 60 days after the date of the enactment of the Civil Service Reform Act of 1978, the Equal Employment Opportunity Commission shall—

(1)

establish the guidelines proposed to be used in carrying out the program required under subsection (c) of this section; and

(2)

make determinations of underrepresentation which are proposed to be used initially under such program; and

(3)

transmit to the Executive agencies involved, to the Office of Personnel Management, and to the Congress the determinations made under paragraph (2) of this subsection.

(e)

Not later than January 31 of each year, the Office shall prepare and transmit to each House of the Congress a report on the activities of the Office and of Executive agencies under subsection (c) of this section, including the affirmative action plans submitted under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), the personnel data file maintained by the Office of Personnel Management, and any other data necessary to evaluate the effectiveness of the program for each category of civil service employment and for each minority group designation, for the preceding fiscal year, together with recommendations for administrative or legislative action the Office considers appropriate.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 523, § 7151; renumbered § 7201 and amended Pub. L. 95–454, title III, § 310, title VII, § 703(a)(1), Oct. 13, 1978, 92 Stat. 1152, 1216.)

5 - 4 - 6 - 2 - 1 - 2 Marital status

(a)

The President may prescribe rules which shall prohibit, as nearly as conditions of good administration warrant, discrimination because of marital status in an Executive agency or in the competitive service.

(b)

Regulations prescribed under any provision of this title, or under any other provision of law, granting benefits to employees, shall provide the same benefits for a married female employee and her spouse and children as are provided for a married male employee and his spouse and children.

(c)

Notwithstanding any other provision of law, any provision of law providing a benefit to a male Federal employee or to his spouse or family shall be deemed to provide the same benefit to a female Federal employee or to her spouse or family.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 523, § 7152; Pub. L. 92–187, § 3, Dec. 15, 1971, 85 Stat. 644; renumbered § 7202, Pub. L. 95–454, title VII, § 703(a)(1), Oct. 13, 1978, 92 Stat. 1216.)

5 - 4 - 6 - 2 - 1 - 3 Handicapping condition

The President may prescribe rules which shall prohibit, as nearly as conditions of good administration warrant, discrimination because of handicapping condition in an Executive agency or in the competitive service with respect to a position the duties of which, in the opinion of the Office of Personnel Management, can be performed efficiently by an individual with a handicapping condition, except that the employment may not endanger the health or safety of the individual or others.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 523, § 7153; renumbered § 7203 and amended Pub. L. 95–454, title I, § 101(b)(2), title VII, § 703(a)(1), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1118, 1216, 1224.)

5 - 4 - 6 - 2 - 1 - 4 Other prohibitions

[(a)

Repealed. Pub. L. 90–83, § 1(44), Sept. 11, 1967, 81 Stat. 208.]

(b)

In the administration of chapter 51, subchapters III and IV of chapter 53, and sections 305 and 3324 of this title, discrimination because of race, color, creed, sex, or marital status is prohibited with respect to an individual or a position held by an individual.

(c)

The Office of Personnel Management may prescribe regulations necessary for the administration of subsection (b) of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 523, § 7154; Pub. L. 90–83, § 1(44), Sept. 11, 1967, 81 Stat. 208; Pub. L. 92–392, § 8, Aug. 19, 1972, 86 Stat. 573; renumbered § 7204 and amended Pub. L. 95–454, title VII, § 703(a)(1), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1216, 1224.)

5 - 4 - 6 - 2 - 2 EMPLOYEES’ RIGHT TO PETITION CONGRESS (§ 7211)

The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.

(Added Pub. L. 95–454, title VII, § 703(a)(3), Oct. 13, 1978, 92 Stat. 1217.)

5 - 4 - 6 - 3 SUITABILITY, SECURITY, AND CONDUCT (§§ 7301 to 7371)

5 - 4 - 6 - 3 - 1 REGULATION OF CONDUCT (§§ 7301 to 7302)

5 - 4 - 6 - 3 - 1 - 1 Presidential regulations

The President may prescribe regulations for the conduct of employees in the executive branch.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 524.)

5 - 4 - 6 - 3 - 1 - 2 Post-employment notification

(a)

Not later than the effective date of the amendments made by section 1106 of the National Defense Authorization Act for Fiscal Year 2004,[1] or 180 days after the date of the enactment of that Act, whichever is later, the Office of Personnel Management shall, in consultation with the Attorney General and the Office of Government Ethics, promulgate regulations requiring that each Executive branch agency notify any employee of that agency who is subject to the provisions of section 207(c)(1) of title 18, as a result of the amendment to section 207(c)(2)(A)(ii) of that title by that Act.

(b)

The regulations shall require that notice be given before, or as part of, the action that affects the employee’s coverage under section 207(c)(1) of title 18, by virtue of the provisions of section 207(c)(2)(A)(ii) of that title, and again when employment or service in the covered position is terminated.

(Added Pub. L. 108–136, div. A, title XI, § 1125(b)(2), Nov. 24, 2003, 117 Stat. 1639.)

5 - 4 - 6 - 3 - 2 EMPLOYMENT LIMITATIONS (§§ 7311 to 7313)

5 - 4 - 6 - 3 - 2 - 1 Loyalty and striking

An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he—

(1)

advocates the overthrow of our constitutional form of government;

(2)

is a member of an organization that he knows advocates the overthrow of our constitutional form of government;

(3)

participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or

(4)

is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 524.)

5 - 4 - 6 - 3 - 2 - 2 Employment and clearance; individuals removed for national security

Removal under section 7532 of this title does not affect the right of an individual so removed to seek or accept employment in an agency of the United States other than the agency from which removed. However, the appointment of an individual so removed may be made only after the head of the agency concerned has consulted with the Office of Personnel Management. The Office, on written request of the head of the agency or the individual so removed, may determine whether the individual is eligible for employment in an agency other than the agency from which removed.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 524; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 6 - 3 - 2 - 3 Riots and civil disorders

(a)An individual convicted by any Federal, State, or local court of competent jurisdiction of—

(1)

inciting a riot or civil disorder;

(2)

organizing, promoting, encouraging, or participating in a riot or civil disorder;

(3)

aiding or abetting any person in committing any offense specified in clause (1) or (2); or

(4)

any offense determined by the head of the employing agency to have been committed in furtherance of, or while participating in, a riot or civil disorder;

shall, if the offense for which he is convicted is a felony, be ineligible to accept or hold any position in the Government of the United States or in the government of the District of Columbia for the five years immediately following the date upon which his conviction becomes final. Any such individual holding a position in the Government of the United States or the government of the District of Columbia on the date his conviction becomes final shall be removed from such position.

(b)

For the purposes of this section, “felony” means any offense for which imprisonment is authorized for a term exceeding one year.

(Added Pub. L. 90–351, title V, § 1001(a), June 19, 1968, 82 Stat. 235.)

5 - 4 - 6 - 3 - 3 POLITICAL ACTIVITIES (§§ 7321 to 7326)

5 - 4 - 6 - 3 - 3 - 1 Political participation

It is the policy of the Congress that employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation.

(Added Pub. L. 103–94, § 2(a), Oct. 6, 1993, 107 Stat. 1001.)

5 - 4 - 6 - 3 - 3 - 2 Definitions

For the purpose of this subchapter—

(1)“employee” means any individual, other than the President and the Vice President, employed or holding office in—

(A)

an Executive agency other than the Government Accountability Office; or

(B)

a position within the competitive service which is not in an Executive agency;

but does not include a member of the uniformed services or an individual employed or holding office in the government of the District of Columbia;

(2)

“partisan political office” means any office for which any candidate is nominated or elected as representing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected, but shall exclude any office or position within a political party or affiliated organization; and

(3)“political contribution”—

(A)

means any gift, subscription, loan, advance, or deposit of money or anything of value, made for any political purpose;

(B)

includes any contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for any political purpose;

(C)

includes any payment by any person, other than a candidate or a political party or affiliated organization, of compensation for the personal services of another person which are rendered to any candidate or political party or affiliated organization without charge for any political purpose; and

(D)

includes the provision of personal services for any political purpose.

(Added Pub. L. 103–94, § 2(a), Oct. 6, 1993, 107 Stat. 1001; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 112–230, § 3(e), Dec. 28, 2012, 126 Stat. 1617.)

5 - 4 - 6 - 3 - 3 - 3 Political activity authorized; prohibitions

(a)Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not—

(1)

use his official authority or influence for the purpose of interfering with or affecting the result of an election;

(2)knowingly solicit, accept, or receive a political contribution from any person, unless such person is—

(A)

a member of the same Federal labor organization as defined under section 7103(4) of this title or a Federal employee organization which as of the date of enactment of the Hatch Act Reform Amendments of 1993had a multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); [1]

(B)

not a subordinate employee; and

(C)

the solicitation is for a contribution to the multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))) 1 of such Federal labor organization as defined under section 7103(4) of this title or a Federalemployee organization which as of the date of the enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); 1 or

(3)

run for the nomination or as a candidate for election to a partisan political office; or

(4)knowingly solicit or discourage the participation in any political activity of any person who—

(A)

has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee; or

(B)

is the subject of or a participant in an ongoing audit, investigation, or enforcement action being carried out by the employing office of such employee.

(b)

(1)

An employee of the Federal Election Commission (except one appointed by the President, by and with the advice and consent of the Senate), may not request or receive from, or give to, an employee, a Member of Congress, or an officer of a uniformed service a political contribution.

(2)

(A)

No employee described under subparagraph (B) (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.

(B)The provisions of subparagraph (A) shall apply to—

(i)an employee of—

(I)

the Federal Election Commission or the Election Assistance Commission;

(II)

the Federal Bureau of Investigation;

(III)

the Secret Service;

(IV)

the Central Intelligence Agency;

(V)

the National Security Council;

(VI)

the National Security Agency;

(VII)

the Defense Intelligence Agency;

(VIII)

the Merit Systems Protection Board;

(IX)

the Office of Special Counsel;

(X)

the Office of Criminal Investigation of the Internal Revenue Service;

(XI)

the Office of Investigative Programs of the United States Customs Service;

(XII)

the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms;

(XIII)

the National Geospatial-Intelligence Agency; or

(XIV)

the Office of the Director of National Intelligence; or

(ii)

a person employed in a position described under section 3132(a)(4), 5372, 5372a, or 5372b of title 5, United States Code.

(3)

No employee of the Criminal Division or National Security Division of the Department of Justice (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.

(4)

For purposes of this subsection, the term “active part in political management or in a political campaign” means those acts of political management or political campaigning which were prohibited for employees of the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.

(c)

An employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates.

(Added Pub. L. 103–94, § 2(a), Oct. 6, 1993, 107 Stat. 1002; amended Pub. L. 103–359, title V, § 501(k), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 106–554, § 1(a)(3) [title VI, § 645(a)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–170; Pub. L. 107–252, title VIII, § 811(a), Oct. 29, 2002, 116 Stat. 1727; Pub. L. 108–458, title I, § 1079(a), Dec. 17, 2004, 118 Stat. 3695; Pub. L. 109–177, title V, § 506(b)(2), Mar. 9, 2006, 120 Stat. 249; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575.)

5 - 4 - 6 - 3 - 3 - 4 Political activities on duty; prohibition

(a)An employee may not engage in political activity—

(1)

while the employee is on duty;

(2)

in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof;

(3)

while wearing a uniform or official insignia identifying the office or position of the employee; or

(4)

using any vehicle owned or leased by the Government of the United States or any agency or instrumentality thereof.

(b)

(1)

An employee described in paragraph (2) of this subsection may engage in political activity otherwise prohibited by subsection (a) if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.

(2)Paragraph (1) applies to an employee—

(A)

the duties and responsibilities of whose position continue outside normal duty hours and while away from the normal duty post; and

(B)who is—

(i)

an employee paid from an appropriation for the Executive Office of the President; or

(ii)

an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws.

(Added Pub. L. 103–94, § 2(a), Oct. 6, 1993, 107 Stat. 1003.)

5 - 4 - 6 - 3 - 3 - 5 Political activity permitted; employees residing in certain municipalities

The Office of Personnel Management may prescribe regulations permittingemployees, without regard to the prohibitions in paragraphs (2) and (3) of section 7323(a) and paragraph (2) of section 7323(b) of this title, to take an active part in political management and political campaigns involving the municipality or other political subdivision in which they reside, to the extent the Office considers it to be in their domestic interest, when—

(1)the municipality or political subdivision is—

(A)

the District of Columbia;

(B)

in Maryland or Virginia and in the immediate vicinity of the District of Columbia; or

(C)

a municipality in which the majority of voters are employed by the Government of the United States; and

(2)

the Office determines that because of special or unusual circumstances which exist in the municipality or political subdivision it is in the domestic interest of the employees and individuals to permit that political participation.

(Added Pub. L. 103–94, § 2(a), Oct. 6, 1993, 107 Stat. 1004; amended Pub. L. 104–93, title III, § 308, Jan. 6, 1996, 109 Stat. 966; Pub. L. 112–230, § 3(f), Dec. 28, 2012, 126 Stat. 1617.)

5 - 4 - 6 - 3 - 3 - 6 Penalties

An employee or individual who violates section 7323 or 7324 shall be subject to—

(1)

disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;

(2)

an assessment of a civil penalty not to exceed $1,000; or

(3)

any combination of the penalties described in paragraph (1) or (2).

(Added Pub. L. 112–230, § 4, Dec. 28, 2012, 126 Stat. 1617; amended Pub. L. 115–91, div. A, title X, § 1097(k)(1), Dec. 12, 2017, 131 Stat. 1626.)

5 - 4 - 6 - 3 - 4 FOREIGN GIFTS AND DECORATIONS (§§ 7341 to 7342)

5 - 4 - 6 - 3 - 4 - 1 Repealed. Pub. L. 90–83, § 1(45)(B), Sept. 11, 1967, 81 Stat. 208]

5 - 4 - 6 - 3 - 4 - 2 Receipt and disposition of foreign gifts and decorations.

(a)For the purpose of this section—

(1)“employee” means—

(A)

an employee as defined by section 2105 of this title and an officer oremployee of the United States Postal Service or of the Postal Regulatory Commission;

(B)

an expert or consultant who is under contract under section 3109 of this title with the United States or any agency, department, or establishment thereof, including, in the case of an organization performing services under such section, any individual involved in the performance of such services;

(C)

an individual employed by, or occupying an office or position in, the government of a territory or possession of the United States or the government of the District of Columbia;

(D)

a member of a uniformed service;

(E)

the President and the Vice President;

(F)

a Member of Congress as defined by section 2106 of this title (except the Vice President) and any Delegate to the Congress; and

(G)

the spouse of an individual described in subparagraphs (A) through (F) (unless such individual and his or her spouse are separated) or a dependent (within the meaning of section 152 of the Internal Revenue Code of 1986) of such an individual, other than a spouse or dependent who is an employee under subparagraphs (A) through (F);

(2)“foreign government” means—

(A)

any unit of foreign governmental authority, including any foreign national, State, local, and municipal government;

(B)

any international or multinational organization whose membership is composed of any unit of foreign government described in subparagraph (A); and

(C)

any agent or representative of any such unit or such organization, while acting as such;

(3)

“gift” means a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign government;

(4)

“decoration” means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a foreign government;

(5)“minimal value” means a retail value in the United States at the time of acceptance of $100 or less, except that—

(A)

on January 1, 1981, and at 3 year intervals thereafter, “minimal value”shall be redefined in regulations prescribed by the Administrator of General Services, in consultation with the Secretary of State, to reflect changes in the consumer price index for the immediately preceding 3-year period; and

(B)

regulations of an employing agency may define “minimal value” for itsemployees to be less than the value established under this paragraph; and

(6)“employing agency” means—

(A)

the Committee on Standards of Official Conduct of the House of Representatives, for Members and employees of the House of Representatives, except that those responsibilities specified in subsections (c)(2)(A), (e)(1), and (g)(2)(B) shall be carried out by the Clerk of the House;

(B)

the Select Committee on Ethics of the Senate, for Senators andemployees of the Senate, except that those responsibilities (other than responsibilities involving approval of the employing agency) specified in subsections (c)(2), (d), and (g)(2)(B) shall be carried out by the Secretary of the Senate;

(C)

the Administrative Office of the United States Courts, for judges and judicial branch employees; and

(D)

the department, agency, office, or other entity in which an employeeis employed, for other legislative branch employees and for all executive branch employees.

(b)An employee may not—

(1)

request or otherwise encourage the tender of a gift or decoration; or

(2)

accept a gift or decoration, other than in accordance with the provisions of subsections (c) and (d).

(c)

(1)The Congress consents to—

(A)

the accepting and retaining by an employee of a gift of minimal valuetendered and received as a souvenir or mark of courtesy; and

(B)the accepting by an employee of a gift of more than minimal valuewhen such gift is in the nature of an educational scholarship or medical treatment or when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that—

(i)

a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States; and

(ii)

an employee may accept gifts of travel or expenses for travel taking place entirely outside the United States (such as transportation, food, and lodging) of more than minimal value if such acceptance is appropriate, consistent with the interests of the United States, and permitted by the employing agency and any regulations which may be prescribed by the employing agency.

(2)Within 60 days after accepting a tangible gift of more than minimal value(other than a gift described in paragraph (1)(B)(ii)), an employee shall—

(A)

deposit the gift for disposal with his or her employing agency; or

(B)

subject to the approval of the employing agency, deposit the gift with that agency for official use.

Within 30 days after terminating the official use of a gift under subparagraph (B), the employing agency shall forward the gift to the Administrator of General Services in accordance with subsection (e)(1) or provide for its disposal in accordance with subsection (e)(2).

(3)

When an employee deposits a gift of more than minimal value for disposal or for official use pursuant to paragraph (2), or within 30 days after accepting travel or travel expenses as provided in paragraph (1)(B)(ii) unless such travel or travel expenses are accepted in accordance with specific instructions of his or her employing agency, the employee shall file a statement with his or her employing agency or its delegate containing the information prescribed in subsection (f) for that gift.

(d)

The Congress consents to the accepting, retaining, and wearing by anemployee of a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of suchemployee. Without this approval, the decoration is deemed to have been accepted on behalf of the United States, shall become the property of the United States, and shall be deposited by the employee, within sixty days of acceptance, with the employing agency for official use, for forwarding to the Administrator of General Services for disposal in accordance with subsection (e)(1), or for disposal in accordance with subsection (e)(2).

(e)

(1)

Except as provided in paragraph (2), gifts and decorations that have been deposited with an employing agency for disposal shall be (A) returned to the donor, or (B) forwarded to the Administrator of General Services for transfer, donation, or other disposal in accordance with the provisions of subtitle I of title 40 and division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41. However, no gift or decoration that has been deposited for disposal may be sold without the approval of the Secretary of State, upon a determination that the sale will not adversely affect the foreign relations of the United States. Gifts and decorations may be sold by negotiated sale.

(2)

Gifts and decorations received by a Senator or an employee of the Senatethat are deposited with the Secretary of the Senate for disposal, or are deposited for an official use which has terminated, shall be disposed of by the Commission on Arts and Antiquities of the United States Senate. Any such gift or decoration may be returned by the Commission to the donor or may be transferred or donated by the Commission, subject to such terms and conditions as it may prescribe, (A) to an agency or instrumentality of (i) the United States, (ii) a State, territory, or possession of the United States, or a political subdivision of the foregoing, or (iii) the District of Columbia, or (B) to an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 which is exempt from taxation under section 501(a) of such Code. Any such gift or decoration not disposed of as provided in the preceding sentence shall be forwarded to the Administrator of General Services for disposal in accordance with paragraph (1). If the Administrator does not dispose of such gift or decoration within one year, he shall, at the request of the Commission, return it to the Commission and the Commission may dispose of such gift or decoration in such manner as it considers proper, except that such gift or decoration may be sold only with the approval of the Secretary of State upon a determination that the sale will not adversely affect the foreign relations of the United States.

(f)

(1)

Not later than January 31 of each year, each employing agency or its delegate shall compile a listing of all statements filed during the preceding year by the employees of that agency pursuant to subsection (c)(3) and shall transmit such listing to the Secretary of State who shall publish a comprehensive listing of all such statements in the Federal Register.

(2)Such listings shall include for each tangible gift reported—

(A)

the name and position of the employee;

(B)

a brief description of the gift and the circumstances justifying acceptance;

(C)

the identity, if known, of the foreign government and the name and position of the individual who presented the gift;

(D)

the date of acceptance of the gift;

(E)

the estimated value in the United States of the gift at the time of acceptance; and

(F)

disposition or current location of the gift.

(3)Such listings shall include for each gift of travel or travel expenses—

(A)

the name and position of the employee;

(B)

a brief description of the gift and the circumstances justifying acceptance; and

(C)

the identity, if known, of the foreign government and the name and position of the individual who presented the gift.

(4)

(A)

In transmitting such listings for an element of the intelligence community, the head of such element may delete the information described in subparagraph (A) or (C) of paragraph (2) or in subparagraph (A) or (C) of paragraph (3) if the head of such element certifies in writing to the Secretary of State that the publication of such information could adversely affect United States intelligence sources or methods.

(B)

Any information not provided to the Secretary of State pursuant to the authority in subparagraph (A) shall be transmitted to the Director of National Intelligence who shall keep a record of such information.

(C)

In this paragraph, the term “intelligence community” has the meaning given that term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).[1]

(g)

(1)

Each employing agency shall prescribe such regulations as may be necessary to carry out the purpose of this section. For all employing agencies in the executive branch, such regulations shall be prescribed pursuant to guidance provided by the Secretary of State. These regulations shall be implemented by each employing agency for its employees.

(2)Each employing agency shall—

(A)

report to the Attorney General cases in which there is reason to believe that an employee has violated this section;

(B)

establish a procedure for obtaining an appraisal, when necessary, of the value of gifts; and

(C)

take any other actions necessary to carry out the purpose of this section.

(h)

The Attorney General may bring a civil action in any district court of the United States against any employee who knowingly solicits or accepts a gift from a foreign government not consented to by this section or who fails to deposit or report such gift as required by this section. The court in which such action is brought may assess a penalty against such employee in any amount not to exceed the retail value of the gift improperly solicited or received plus $5,000.

(i)

The President shall direct all Chiefs of a United States Diplomatic Mission to inform their host governments that it is a general policy of the United States Government to prohibit United States Government employees from receivinggifts or decorations of more than minimal value.

(j)

Nothing in this section shall be construed to derogate any regulation prescribed by any employing agency which provides for more stringent limitations on the receipt of gifts and decorations by its employees.

(k)

The provisions of this section do not apply to grants and other forms of assistance to which section 108A of the Mutual Educational and Cultural Exchange Act of 1961 applies.

(Added Pub. L. 90–83, § 1(45)(C), Sept. 11, 1967, 81 Stat. 208; amended Pub. L. 95–105, title V, § 515(a)(1), Aug. 17, 1977, 91 Stat. 862; Pub. L. 95–426, title VII, § 712(a)–(c), Oct. 7, 1978, 92 Stat. 994; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 107–217, § 3(a)(1), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–458, title I, § 1079(b), Dec. 17, 2004, 118 Stat. 3696; Pub. L. 109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat. 3241; Pub. L. 111–259, title III, § 361, Oct. 7, 2010, 124 Stat. 2701; Pub. L. 111–350, § 5(a)(10), Jan. 4, 2011, 124 Stat. 3841.)

5 - 4 - 6 - 3 - 5 MISCONDUCT (§§ 7351 to 7353)

5 - 4 - 6 - 3 - 5 - 1 Gifts to superiors

(a)An employee may not—

(1)

solicit a contribution from another employee for a gift to an official superior;

(2)

make a donation as a gift or give a gift to an official superior; or

(3)

accept a gift from an employee receiving less pay than himself.

(b)

An employee who violates this section shall be subject to appropriate disciplinary action by the employing agency or entity.

(c)

Each supervising ethics office (as defined in section 7353(d)(1)) is authorized to issue regulations implementing this section, including regulations exempting voluntary gifts or contributions that are given or received for special occasions such as marriage or retirement or under other circumstances in which gifts are traditionally given or exchanged.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 527; Pub. L. 101–194, title III, § 301, Nov. 30, 1989, 103 Stat. 1745; Pub. L. 101–280, § 4(a), May 4, 1990, 104 Stat. 157.)

5 - 4 - 6 - 3 - 5 - 1 Excessive and habitual use of intoxicants

An individual who habitually uses intoxicating beverages to excess may not be employed in the competitive service.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 527.)

5 - 4 - 6 - 3 - 5 - 1 Gifts to Federal employees

(a)Except as permitted by subsection (b), no Member of Congress or officer or employee of the executive, legislative, or judicial branch shall solicit or accept anything of value from a person—

(1)

seeking official action from, doing business with, or (in the case of executive branch officers and employees) conducting activities regulated by, the individual’s employing entity; or

(2)

whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.

(b)

(1)

Each supervising ethics office is authorized to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.

(2)

(A)

Subject to subparagraph (B), a Member, officer, or employee may accept a gift pursuant to rules or regulations established by such individual’s supervising ethics office pursuant to paragraph (1).

(B)

No gift may be accepted pursuant to subparagraph (A) in return for being influenced in the performance of any official act.

(3)

Nothing in this section precludes a Member, officer, or employee from accepting gifts on behalf of the United States Government or any of its agencies in accordance with statutory authority.

(4)

Nothing in this section precludes an employee of a private sector organization, while assigned to an agency under chapter 37, from continuing to receive pay and benefits from such organization in accordance with such chapter.

(c)

A Member of Congress or an officer or employee who violates this section shall be subject to appropriate disciplinary and other remedial action in accordance with any applicable laws, Executive orders, and rules or regulations.

(d)For purposes of this section—

(1)the term “supervising ethics office” means—

(A)

the Committee on Standards of Official Conduct of the House of Representatives or the House of Representatives as a whole, for Members, officers, and employees of the House of Representatives;

(B)

the Select Committee on Ethics of the Senate, or the Senate as a whole, for Senators, officers, and employees of the Senate;

(C)

the Judicial Conference of the United States for judges and judicial branch officers and employees;

(D)

the Office of Government Ethics for all executive branch officers and employees; and

(E)

in the case of legislative branch officers and employees other than those specified in subparagraphs (A) and (B), the committee referred to in either such subparagraph to which reports filed by such officers and employees under subchapter I of chapter 131 of this title are transmitted under such subchapter, except that the authority of this section may be delegated by such committee with respect to such officers and employees; and

(2)

the term “officer or employee” means an individual holding an appointive or elective position in the executive, legislative, or judicial branch of Government, other than a Member of Congress.

(Added Pub. L. 101–194, title III, § 303(a), Nov. 30, 1989, 103 Stat. 1746; amended Pub. L. 101–280, § 4(d), May 4, 1990, 104 Stat. 158; Pub. L. 107–347, title II, § 209(g)(1)(C), Dec. 17, 2002, 116 Stat. 2932; Pub. L. 117–286, § 4(c)(9), Dec. 27, 2022, 136 Stat. 4354.)

5 - 4 - 6 - 3 - 6 DRUG ABUSE, ALCOHOL ABUSE, AND ALCOHOLISM (§§ 7361 to 7363)

5 - 4 - 6 - 3 - 6 - 1 Drug abuse

(a)

The Office of Personnel Management shall be responsible for developing, in cooperation with the President, with the Secretary of Health and Human Services (acting through the National Institute on Drug Abuse), and with other agencies, and in accordance with applicable provisions of this subchapter, appropriate prevention, treatment, and rehabilitation programs and services for drug abuse among employees. Such agencies are encouraged to extend, to the extent feasible, such programs and services to the families of employees and to employees who have family members who are drug abusers. Such programs and services shall make optimal use of existing governmental facilities, services, and skills.

(b)

Section 527 [1] of the Public Health Service Act (42 U.S.C. 290ee–3), relating to confidentiality of records, and any regulations prescribed thereunder, shall apply with respect to records maintained for the purpose of carrying out this section.

(c)

Each agency shall, with respect to any programs or services provided by such agency, submit such written reports as the Office may require in connection with any report required under section 7363 of this title.

(d)

For the purpose of this section, the term “agency” means an Executive agency.

(Added Pub. L. 99–570, title VI, § 6002(a)(1), Oct. 27, 1986, 100 Stat. 3207–157.)

5 - 4 - 6 - 3 - 6 - 2 Alcohol abuse and alcoholism

(a)

The Office of Personnel Management shall be responsible for developing, in cooperation with the Secretary of Health and Human Services and with other agencies, and in accordance with applicable provisions of this subpart, appropriate prevention, treatment, and rehabilitation programs and services for alcohol abuse and alcoholism among employees. Such agencies are encouraged to extend, to the extent feasible, such programs and services to the families of alcoholic employees and to employees who have family members who are alcoholics. Such programs and services shall make optimal use of existing governmental facilities, services, and skills.

(b)

Section 523 [1] of the Public Health Service Act (42 U.S.C. 290dd–3), relating to confidentiality of records, and any regulations prescribed thereunder, shall apply with respect to records maintained for the purpose of carrying out this section.

(c)

(d)

For the purpose of this section, the term “agency” means an Executive agency.

(Added Pub. L. 99–570, title VI, § 6002(a)(1), Oct. 27, 1986, 100 Stat. 3207–157.)

5 - 4 - 6 - 3 - 6 - 3 Reports to Congress

(a)

The Office of Personnel Management shall, within 6 months after the date of the enactment of the Federal Employee Substance Abuse Education and Treatment Act of 1986 and annually thereafter, submit to each House of Congress a report containing the matters described in subsection (b).

(b)Each report under this section shall include—

(1)

a description of any programs or services provided under section 7361 or 7362 of this title, including the costs associated with each such program or service and the source and adequacy of any funding [1] such program or service;

(2)

a description of the levels of participation in each program and service provided under section 7361 or 7362 of this title, and the effectiveness of such programs and services;

(3)

a description of the training and qualifications required of the personnel providing any program or service under section 7361 or 7362 of this title;

(4)

a description of the training given to supervisory personnel in connection with recognizing the symptoms of drug or alcohol abuse and the procedures (including those relating to confidentiality) under which individuals are referred for treatment, rehabilitation, or other assistance;

(5)

any recommendations for legislation considered appropriate by the Office and any proposed administrative actions; and

(6)

information describing any other related activities under section 7904 of this title, and any other matter which the Office considers appropriate.

(Added Pub. L. 99–570, title VI, § 6002(a)(1), Oct. 27, 1986, 100 Stat. 3207–158.)

5 - 4 - 6 - 3 - 7 MANDATORY REMOVAL FROM EMPLOYMENT OF CONVICTED LAW ENFORCEMENT OFFICERS (§ 7371)

(a)In this section, the term—

(1)

“conviction notice date” means the date on which an agency that employs a law enforcement officer has notice that the officer has been convicted of a felony that is entered by a Federal or State court, regardless of whether that conviction is appealed or is subject to appeal; and

(2)

“law enforcement officer” has the meaning given that term under section 8331(20) or 8401(17).

(b)

Any law enforcement officer who is convicted of a felony shall be removed from employment as a law enforcement officer on the last day of the first applicable pay period following the conviction notice date.

(c)

(1)

This section does not prohibit the removal of an individual from employment as a law enforcement officer before a conviction notice date if the removal is properly effected other than under this section.

(2)

This section does not prohibit the employment of any individual in any position other than that of a law enforcement officer.

(d)

If the conviction is overturned on appeal, the removal shall be set aside retroactively to the date on which the removal occurred, with back pay under section 5596 for the period during which the removal was in effect, unless the removal was properly effected other than under this section.

(e)

(1)

If removal is required under this section, the agency shall deliver written notice to the employee as soon as practicable, and not later than 5 calendar days after the conviction notice date. The notice shall include a description of the specific reasons for the removal, the date of removal, and the procedures made applicable under paragraph (2).

(2)The procedures under section 7513(b)(2), (3), and (4), (c), (d), and (e) shall apply to any removal under this section. The employee may use the procedures to contest or appeal a removal, but only with respect to whether—

(A)

the employee is a law enforcement officer;

(B)

the employee was convicted of a felony; or

(C)

the conviction was overturned on appeal.

(3)

A removal required under this section shall occur on the date specified in subsection (b) regardless of whether the notice required under paragraph (1) of this subsection and the procedures made applicable under paragraph (2) of this subsection have been provided or completed by that date.

(Added Pub. L. 106–554, § 1(a)(3) [title VI, § 639(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–168.)

5 - 4 - 6 - 4 ADVERSE ACTIONS (§§ 7501 to 7543)

5 - 4 - 6 - 4 - 1 SUSPENSION FOR 14 DAYS OR LESS (§§ 7501 to 7504)

5 - 4 - 6 - 4 - 1 - 1 Definitions

For the purpose of this subchapter—

(1)

“employee” means an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; and

(2)

“suspension” means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1134; amended Pub. L. 114–92, div. A, title XI, § 1105(c)(3), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(C), Dec. 27, 2021, 135 Stat. 1950.)

5 - 4 - 6 - 4 - 1 - 2 Actions covered

This subchapter applies to a suspension for 14 days or less, but does not apply to a suspension under section 7521 or 7532 of this title or any action initiated under section 1215 of this title.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1135; amended Pub. L. 101–12, § 9(a)(2), Apr. 10, 1989, 103 Stat. 35.)

5 - 4 - 6 - 4 - 1 - 3 Cause and procedure

(a)

Under regulations prescribed by the Office of Personnel Management, anemployee may be suspended for 14 days or less for such cause as will promote the efficiency of the service (including discourteous conduct to the public confirmed by an immediate supervisor’s report of four such instances within any one-year period or any other pattern of discourteous conduct).

(b)An employee against whom a suspension for 14 days or less is proposed is entitled to—

(1)

an advance written notice stating the specific reasons for the proposed action;

(2)

a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3)

be represented by an attorney or other representative; and

(4)

a written decision and the specific reasons therefor at the earliest practicable date.

(c)

Copies of the notice of proposed action, the answer of the employee if written, a summary thereof if made orally, the notice of decision and reasons therefor, and any order effecting [1] the suspension, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1135.)

5 - 4 - 6 - 4 - 1 - 4 Regulations

The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1135.)

5 - 4 - 6 - 4 - 2 REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS (§§ 7511 to 7515)

5 - 4 - 6 - 4 - 2 - 1 Definitions; application

(a)For the purpose of this subchapter—

(1)“employee” means—

(A)an individual in the competitive service—

(i)

who is not serving a probationary or trial period under an initial appointment; or

(ii)

who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;

(B)a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions—

(i)

in an Executive agency; or

(ii)

in the United States Postal Service or Postal Regulatory Commission; and

(C)an individual in the excepted service (other than a preference eligible)—

(i)

who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or

(ii)

who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less;

(2)

“suspension” has the same meaning as set forth in section 7501(2) of this title;

(3)

“grade” means a level of classification under a position classification system;

(4)

“pay” means the rate of basic pay fixed by law or administrative action for the position held by an employee; and

(5)

“furlough” means the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons.

(b)This subchapter does not apply to an employee—

(1)

whose appointment is made by and with the advice and consent of the Senate;

(2)whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by—

(A)

the President for a position that the President has excepted from the competitive service;

(B)

the Office of Personnel Management for a position that the Office has excepted from the competitive service; or

(C)

the President or the head of an agency for a position excepted from the competitive service by statute;

(3)

whose appointment is made by the President;

(4)

who is receiving an annuity from the Civil Service Retirement and Disability Fund, or the Foreign Service Retirement and Disability Fund, based on the service of such employee;

[(5)

Repealed. Pub. L. 114–328, div. A, title V, § 512(c), Dec. 23, 2016, 130 Stat. 2112.]

(6)

who is a member of the Foreign Service, as described in section 103 of the Foreign Service Act of 1980;

(7)

whose position is within the Central Intelligence Agency or the Government Accountability Office;

(8)

whose position is within the United States Postal Service, the Postal Regulatory Commission, the Panama Canal Commission, the Tennessee Valley Authority, the Federal Bureau of Investigation, an intelligence component of the Department of Defense (as defined in section 1614 of title 10), or an intelligence activity of a military department covered under subchapter I of chapter 83 of title 10, unless subsection (a)(1)(B) of this section or section 1005(a) of title 39 is the basis for this subchapter’s applicability;

(9)

who is described in section 5102(c)(11) of this title; or

(10)

who holds a position within the Veterans Health Administration which has been excluded from the competitive service by or under a provision of title 38, unless such employee was appointed to such position under section 7401(3) of such title.

(c)

The Office may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office which is not otherwise covered by this subchapter.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1135; amended Pub. L. 101–376, § 2(a), Aug. 17, 1990, 104 Stat. 461; Pub. L. 102–378, § 6(a), Oct. 2, 1992, 106 Stat. 1358; Pub. L. 103–359, title V, § 501(l), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XVI, § 1634(b), Sept. 23, 1996, 110 Stat. 2752; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, § 604(b), (f), Dec. 20, 2006, 120 Stat. 3241, 3242; Pub. L. 114–92, div. A, title XI, § 1105(c)(4), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 114–328, div. A, title V, § 512(c), Dec. 23, 2016, 130 Stat. 2112; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(D), Dec. 27, 2021, 135 Stat. 1950.)

5 - 4 - 6 - 4 - 2 - 2 Actions covered

This subchapter applies to—

(1)

a removal;

(2)

a suspension for more than 14 days;

(3)

a reduction in grade;

(4)

a reduction in pay; and

(5)

a furlough of 30 days or less;

but does not apply to—

(A)

a suspension or removal under section 7532 of this title,

(B)

a reduction-in-force action under section 3502 of this title,

(C)

the reduction in grade of a supervisor or manager who has not completed the probationary period under section 3321(a)(2) of this title if such reduction is to the grade held immediately before becoming such a supervisor or manager,

(D)

a reduction in grade or removal under section 4303 of this title,

(E)

an action initiated under section 1215 or 7521 of this title, or

(F)

a suitability action taken by the Office under regulations prescribed by the Office, subject to the rules prescribed by the President under this title for the administration of the competitive service.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1136; amended Pub. L. 101–12, § 9(a)(2), Apr. 10, 1989, 103 Stat. 35; Pub. L. 114–92, div. A, title X, § 1086(f)(9), Nov. 25, 2015, 129 Stat. 1010.)

5 - 4 - 6 - 4 - 2 - 3 Cause and procedure

(a)

Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service.

(b)An employee against whom an action is proposed is entitled to—

(1)

at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;

(2)

a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3)

be represented by an attorney or other representative; and

(4)

a written decision and the specific reasons therefor at the earliest practicable date.

(c)

An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.

(d)

An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.

(e)

Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee’s request.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1136.)

5 - 4 - 6 - 4 - 2 - 4 Regulations

The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter, except as it concerns any matter with respect to which the Merit Systems Protection Board may prescribe regulations.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1137.)

5 - 4 - 6 - 4 - 2 - 5 Discipline of supervisors based on retaliation against whistleblowers

(a)Definitions.—In this section—

(1)the term “agency”—

(A)

has the meaning given the term in section 2302(a)(2)(C), without regard to whether any other provision of this chapter is applicable to the entity; and

(B)

does not include any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947(50 U.S.C. 3003);

(2)

the term “prohibited personnel action” means taking or failing to take an action in violation of paragraph (8), (9), or (14) of section 2302(b) against anemployee of an agency; and

(3)

the term “supervisor” means an employee who would be a supervisor, as defined in section 7103(a), if the entity employing the employee was anagency.

(b)Proposed Disciplinary Actions.—

(1)In general.—Subject to section 1214(f), if the head of the agency in which a supervisor is employed, an administrative law judge, the Merit Systems Protection Board, the Special Counsel, a judge of the United States, or the Inspector General of the agency in which a supervisor is employed has determined that the supervisor committed a prohibited personnel action,the head of the agency in which the supervisor is employed, consistent with the procedures required under paragraph (2)—

(A)for the first prohibited personnel action committed by the supervisor—

(i)

shall propose suspending the supervisor for a period that is not less than 3 days; and

(ii)

may propose an additional action determined appropriate by the head of the agency, including a reduction in grade or pay; and

(B)

for the second prohibited personnel action committed by thesupervisor, shall propose removing the supervisor.

(2)Procedures.—

(A)Notice.—A supervisor against whom an action is proposed to be taken under paragraph (1) is entitled to written notice that—

(i)

states the specific reasons for the proposed action; and

(ii)

informs the supervisor about the right of the supervisor to review the material that is relied on to support the reasons given in the notice for the proposed action.

(B)Answer and evidence.—

(i)In general.—

A supervisor who receives notice under subparagraph (A) may, not later than 14 days after the date on which the supervisor receives the notice, submit an answer and furnish evidence in support of that answer.

(ii)No evidence furnished; insufficient evidence furnished.—

If, after the end of the 14-day period described in clause (i), a supervisor does not furnish any evidence as described in that clause, or if the head of the agency in which the supervisor is employed determines that the evidence furnished by the supervisor is insufficient, the head of the agency shall carry out the action proposed under subparagraph (A) or (B) of paragraph (1), as applicable.

(C)Scope of procedures.—An action carried out under this section—

(i)

except as provided in clause (ii), shall be subject to the same requirements and procedures, including those with respect to an appeal, as an action under section 7503, 7513, or 7543; and

(ii)shall not be subject to—

(I)

paragraphs (1) and (2) of section 7503(b);

(II)

paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7513; and

(III)

paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7543.

(3)Non-delegation.—

If the head of an agency is responsible for determining whether a supervisorhas committed a prohibited personnel action for purposes of paragraph (1), the head of the agency may not delegate that responsibility.

(Added Pub. L. 115–91, div. A, title X, § 1097(e)(1)(B), Dec. 12, 2017, 131 Stat. 1621.)

5 - 4 - 6 - 4 - 3 ADMINISTRATIVE LAW JUDGES (§ 7521)

5 - 4 - 6 - 4 - 3 - 1 Actions against administrative law judges

(a)

An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.

(b)The actions covered by this section are—

(1)

a removal;

(2)

a suspension;

(3)

a reduction in grade;

(4)

a reduction in pay; and

(5)

a furlough of 30 days or less;

but do not include—

(A)

a suspension or removal under section 7532 of this title;

(B)

a reduction-in-force action under section 3502 of this title; or

(C)

any action initiated under section 1215 of this title.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1137; amended Pub. L. 101–12, § 9(a)(2), Apr. 10, 1989, 103 Stat. 35.)

5 - 4 - 6 - 4 - 4 NATIONAL SECURITY (§§ 7531 to 7533)

5 - 4 - 6 - 4 - 4 - 1 Definitions

For the purpose of this subchapter, “agency” means—

(1)

the Department of State;

(2)

the Department of Commerce;

(3)

the Department of Justice;

(4)

the Department of Defense;

(5)

a military department;

(6)

the Coast Guard;

(7)

the Atomic Energy Commission;

(8)

the National Aeronautics and Space Administration; and

(9)

such other agency of the Government of the United States as the President designates in the best interests of national security.

The President shall report any designation to the Committees on the Armed Services of the Congress.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 528.)

5 - 4 - 6 - 4 - 4 - 2 Suspension and removal

(a)

Notwithstanding other statutes, the head of an agency may suspend without pay an employee of his agency when he considers that action necessary in the interests of national security. To the extent that the head of the agency determines that the interests of national security permit, the suspended employee shall be notified of the reasons for the suspension. Within 30 days after the notification, the suspended employee is entitled to submit to the official designated by the head of the agency statements or affidavits to show why he should be restored to duty.

(b)

Subject to subsection (c) of this section, the head of an agency may remove an employee suspended under subsection (a) of this section when, after such investigation and review as he considers necessary, he determines that removal is necessary or advisable in the interests of national security. The determination of the head of the agency is final.

(c)An employee suspended under subsection (a) of this section who—

(1)

has a permanent or indefinite appointment;

(2)

has completed his probationary or trial period; and

(3)

is a citizen of the United States;

is entitled, after suspension and before removal, to—

(A)

a written statement of the charges against him within 30 days after suspension, which may be amended within 30 days thereafter and which shall be stated as specifically as security considerations permit;

(B)

an opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit affidavits;

(C)

a hearing, at the request of the employee, by an agency authority duly constituted for this purpose;

(D)

a review of his case by the head of the agency or his designee, before a decision adverse to the employee is made final; and

(E)

a written statement of the decision of the head of the agency.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 529.)

5 - 4 - 6 - 4 - 4 - 3 Effect on other statutes

This subchapter does not impair the powers vested in the Atomic Energy Commission by chapter 23 of title 42, or the requirement in section 2201(d) of title 42 that adequate provision be made for administrative review of a determination to dismiss an employee of the Atomic Energy Commission.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 529.)

5 - 4 - 6 - 4 - 5 SENIOR EXECUTIVE SERVICE (§§ 7541 to 7543)

5 - 4 - 6 - 4 - 5 - 1 Definitions

For the purpose of this subchapter—

(1)“employee” means a career appointee in the Senior Executive Service who—

(A)

has completed the probationary period prescribed under section 3393(d) of this title; or

(B)

was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service; and

(2)

“suspension” has the meaning set forth in section 7501(2) of this title.

(Added Pub. L. 95–454, title IV, § 411(2), Oct. 13, 1978, 92 Stat. 1174; amended Pub. L. 114–92, div. A, title XI, § 1105(c)(5), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(E), Dec. 27, 2021, 135 Stat. 1950.)

5 - 4 - 6 - 4 - 5 - 2 Actions covered

This subchapter applies to a removal from the civil service or suspension for more than 14 days, but does not apply to an action initiated under section 1215 of this title, to a suspension or removal under section 7532 of this title, or to a removal under section 3592 or 3595 of this title.

(Added Pub. L. 95–454, title IV, § 411(2), Oct. 13, 1978, 92 Stat. 1174; amended Pub. L. 97–35, title XVII, § 1704(d)(1), Aug. 13, 1981, 95 Stat. 758; Pub. L. 101–12, § 9(a)(2), Apr. 10, 1989, 103 Stat. 35.)

5 - 4 - 6 - 4 - 5 - 3 Cause and procedure

(a)

Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

(b)An employee against whom an action covered by this subchapter is proposed is entitled to—

(1)

at least 30 days’ advance written notice, unless there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be imposed, stating specific reasons for the proposed action;

(2)

a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3)

be represented by an attorney or other representative; and

(4)

a written decision and specific reasons therefor at the earliest practicable date.

(c)

An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.

(d)

An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.

(e)

Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request.

(Added Pub. L. 95–454, title IV, § 411(2), Oct. 13, 1978, 92 Stat. 1174; amended Pub. L. 97–35, title XVII, § 1704(d)(2), Aug. 13, 1981, 95 Stat. 758; Pub. L. 98–615, title III, § 304(c), Nov. 8, 1984, 98 Stat. 3219.)

5 - 4 - 6 - 5 APPEALS (§§ 7701 to 7703)

5 - 4 - 6 - 5 - 1 Appellate procedures

(a)An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation. An appellant shall have the right—

(1)

to a hearing for which a transcript will be kept; and

(2)

to be represented by an attorney or other representative.

Appeals shall be processed in accordance with regulations prescribed by the Board.

(b)

(1)

The Board may hear any case appealed to it or may refer the case to an administrative law judge appointed under section 3105 of this title or other employee of the Board designated by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge. The Board, administrative law judge, or other employee (as the case may be) shall make a decision after receipt of the written representations of the parties to the appeal and after opportunity for a hearing under subsection (a)(1) of this section. A copy of the decision shall be furnished to each party to the appeal and to the Office of Personnel Management.

(2)

(A)If an employee or applicant for employment is the prevailing party in an appeal under this subsection, the employee or applicant shall be granted the relief provided in the decision effective upon the making of the decision, and remaining in effect pending the outcome of any petition for review under subsection (e), unless—

(i)

the deciding official determines that the granting of such relief is not appropriate; or

(ii)

(I)

the relief granted in the decision provides that such employee or applicant shall return or be present at the place of employment during the period pending the outcome of any petition for review under subsection (e); and

(II)

the employing agency, subject to the provisions of subparagraph (B), determines that the return or presence of such employee or applicant is unduly disruptive to the work environment.

(B)

If an agency makes a determination under subparagraph (A)(ii)(II) that prevents the return or presence of an employee at the place of employment, such employee shall receive pay, compensation, and all other benefits as terms and conditions of employment during the period pending the outcome of any petition for review under subsection (e).

(C)

Nothing in the provisions of this paragraph may be construed to require any award of back pay or attorney fees be paid before the decision is final.

(3)

With respect to an appeal from an adverse action covered by subchapter V of chapter 75, authority to mitigate the personnel action involved shall be available, subject to the same standards as would apply in an appeal involving an action covered by subchapter II of chapter 75 with respect to which mitigation authority under this section exists.

(c)

(1)Subject to paragraph (2) of this subsection, the decision of the agency shall be sustained under subsection (b) only if the agency’s decision—

(A)

in the case of an action based on unacceptable performance described in section 4303, is supported by substantial evidence; or

(B)

in any other case, is supported by a preponderance of the evidence.

(2)Notwithstanding paragraph (1), the agency’s decision may not be sustained under subsection (b) of this section if the employee or applicant for employment—

(A)

shows harmful error in the application of the agency’s procedures in arriving at such decision;

(B)

shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or

(C)

shows that the decision was not in accordance with law.

(d)

(1)In any case in which—

(A)

the interpretation or application of any civil service law, rule, or regulation, under the jurisdiction of the Office of Personnel Managementis at issue in any proceeding under this section; and

(B)

the Director of the Office of Personnel Management is of the opinion that an erroneous decision would have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office;

the Director may as a matter of right intervene or otherwise participate in that proceeding before the Board. If the Director exercises his right to participate in a proceeding before the Board, he shall do so as early in the proceeding as practicable. Nothing in this title shall be construed to permit the Office to interfere with the independent decisionmaking of the Merit Systems Protection Board.

(2)

The Board shall promptly notify the Director whenever the interpretation of any civil service law, rule, or regulation under the jurisdiction of the Office is at issue in any proceeding under this section.

(e)

(1)Except as provided in section 7702 of this title, any decision under subsection (b) of this section shall be final unless—

(A)

a party to the appeal or the Director petitions the Board for review within 30 days after the receipt of the decision; or

(B)

the Board reopens and reconsiders a case on its own motion.

The Board, for good cause shown, may extend the 30-day period referred to in subparagraph (A) of this paragraph. One member of the Board may grant a petition or otherwise direct that a decision be reviewed by the full Board. The preceding sentence shall not apply if, by law, a decision of an administrative law judge is required to be acted upon by the Board.

(2)

The Director may petition the Board for a review under paragraph (1) of this subsection only if the Director is of the opinion that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office.

(f)The Board, or an administrative law judge or other employee of the Board designated to hear a case, may—

(1)

consolidate appeals filed by two or more appellants, or

(2)

join two or more appeals filed by the same appellant and hear and decide them concurrently,

if the deciding official or officials hearing the cases are of the opinion that the action could result in the appeals’ being processed more expeditiously and would not adversely affect any party.

(g)

(1)

Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency’s action was clearly without merit.

(2)

If an employee or applicant for employment is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(k)).

(h)

The Board may, by regulation, provide for one or more alternative methods for settling matters subject to the appellate jurisdiction of the Board which shall be applicable at the election of an applicant for employment or of an employee who is not in a unit for which a labor organization is accorded exclusive recognition, and shall be in lieu of other procedures provided for under this section. A decision under such a method shall be final, unless the Board reopens and reconsiders a case at the request of the Office of Personnel Managementunder subsection (e) of this section.

(i)

(1)

Upon the submission of any appeal to the Board under this section, the Board, through reference to such categories of cases, or other means, as it determines appropriate, shall establish and announce publicly the date by which it intends to complete action on the matter. Such date shall assure expeditious consideration of the appeal, consistent with the interests of fairness and other priorities of the Board. If the Board fails to complete action on the appeal by the announced date, and the expected delay will exceed 30 days, the Board shall publicly announce the new date by which it intends to complete action on the appeal.

(2)

Not later than March 1 of each year, the Board shall submit to the Congress a report describing the number of appeals submitted to it during the preceding fiscal year, the number of appeals on which it completed action during that year, and the number of instances during that year in which it failed to conclude a proceeding by the date originally announced, together with an explanation of the reasons therefor.

(3)

The Board shall by rule indicate any other category of significant Board action which the Board determines should be subject to the provisions of this subsection.

(4)

It shall be the duty of the Board, an administrative law judge, or employee designated by the Board to hear any proceeding under this section to expedite to the extent practicable that proceeding.

(j)

In determining the appealability under this section of any case involving a removal from the service (other than the removal of a reemployed annuitant), neither an individual’s status under any retirement system established by or under Federal statute nor any election made by such individual under any such system may be taken into account.

(k)

The Board may prescribe regulations to carry out the purpose of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 95–454, title II, § 205, Oct. 13, 1978, 92 Stat. 1138; Pub. L. 96–54, § 2(a)(45), Aug. 14, 1979, 93 Stat. 384; Pub. L. 99–386, title II, § 208, Aug. 22, 1986, 100 Stat. 824; Pub. L. 101–12, § 6, Apr. 10, 1989, 103 Stat. 33; Pub. L. 101–194, title V, § 506(b)(6), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 101–280, § 6(d)(2), May 4, 1990, 104 Stat. 160; Pub. L. 101–376, § 3, Aug. 17, 1990, 104 Stat. 462; Pub. L. 102–175, § 5, Dec. 2, 1991, 105 Stat. 1223; Pub. L. 102–378, § 2(56), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 107–296, title XIII, § 1321(a)(3), Nov. 25, 2002, 116 Stat. 2297.)

5 - 4 - 6 - 5 - 2 Actions involving discrimination

(a)

(1)Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who—

(A)

has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and

(B)alleges that a basis for the action was discrimination prohibited by—

(i)

section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16),

(ii)

section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)),

(iii)

section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),

(iv)

sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), or

(v)

any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph,

the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures under section 7701 of this titleand this section.

(2)In any matter before an agency which involves—

(A)

any action described in paragraph (1)(A) of this subsection; and

(B)

any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection;

the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1) of this subsection.

(3)Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of—

(A)

the date of issuance of the decision if the employee or applicant does not file a petition with the Equal Employment Opportunity Commissionunder subsection (b)(1) of this section, or

(B)

the date the Commission determines not to consider the decision under subsection (b)(2) of this section.

(b)

(1)

An employee or applicant may, within 30 days after notice of the decision of the Board under subsection (a)(1) of this section, petition the Commission to consider the decision.

(2)

The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of the Commission not to consider the decision may not be used as evidence with respect to any issue of discrimination in any judicial proceeding concerning that issue.

(3)If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the Board and, on the basis of the evidentiary record before the Board, as supplemented under paragraph (4) of this subsection, either—

(A)

concur in the decision of the Board; or

(B)issue in writing another decision which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law—

(i)

the decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive referred to in subsection (a)(1)(B) of this section, or

(ii)

the decision involving such provision is not supported by the evidence in the record as a whole.

(4)

In considering any decision of the Board under this subsection, the Commission may refer the case to the Board, or provide on its own, for the taking (within such period as permits the Commission to make a decision within the 60-day period prescribed under this subsection) of additional evidence to the extent it considers necessary to supplement the record.

(5)

(A)

If the Commission concurs pursuant to paragraph (3)(A) of this subsection in the decision of the Board, the decision of the Board shall be a judicially reviewable action.

(B)

If the Commission issues any decision under paragraph (3)(B) of this subsection, the Commission shall immediately refer the matter to the Board.

(c)Within 30 days after receipt by the Board of the decision of the Commission under subsection (b)(5)(B) of this section, the Board shall consider the decision and—

(1)

concur and adopt in whole the decision of the Commission; or

(2)to the extent that the Board finds that, as a matter of law, (A) the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive, or (B) the Commission decision involving such provision is not supported by the evidence in the record as a whole—

(i)

reaffirm the initial decision of the Board; or

(ii)

reaffirm the initial decision of the Board with such revisions as it determines appropriate.

If the Board takes the action provided under paragraph (1), the decision of the Board shall be a judicially reviewable action.

(d)

(1)If the Board takes any action under subsection (c)(2) of this section, the matter shall be immediately certified to a special panel described in paragraph (6) of this subsection. Upon certification, the Board shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special panel the administrative record in the proceeding, including—

(A)

the factual record compiled under this section,

(B)

the decisions issued by the Board and the Commission under this section, and

(C)

any transcript of oral arguments made, or legal briefs filed, before the Board or the Commission.

(2)

(A)

The special panel shall, within 45 days after a matter has been certified to it, review the administrative record transmitted to it and, on the basis of the record, decide the issues in dispute and issue a final decision which shall be a judicially reviewable action.

(B)

The special panel shall give due deference to the respective expertise of the Board and Commission in making its decision.

(3)

The special panel shall refer its decision under paragraph (2) of this subsection to the Board and the Board shall order any agency to take any action appropriate to carry out the decision.

(4)

The special panel shall permit the employee or applicant who brought the complaint and the employing agency to appear before the panel to present oral arguments and to present written arguments with respect to the matter.

(5)

Upon application by the employee or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any agency to review on an interim basis, the action referred to in subsection (a)(1) of this section.

(6)

(A)Each time the Board takes any action under subsection (c)(2) of this section, a special panel shall be convened which shall consist of—

(i)

an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special panel each time it is convened;

(ii)

one member of the Board designated by the Chairman of the Board each time a panel is convened; and

(iii)

one member of the Commission designated by the Chairman of the Commission each time a panel is convened.

The chairman of the special panel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

(B)

The chairman is entitled to pay at a rate equal to the maximum annual rate of basic pay payable under the General Schedule for each day he is engaged in the performance of official business on the work of the special panel.

(C)

The Board and the Commission shall provide such administrative assistance to the special panel as may be necessary and, to the extent practicable, shall equally divide the costs of providing the administrative assistance.

(e)

(1)Notwithstanding any other provision of law, if at any time after—

(A)

the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action under this section or an appeal under paragraph (2) of this subsection;

(B)

the 120th day following the filing of an appeal with the Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b)(1) of this section); or

(C)

the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, there is no final agency action under subsection (b), (c), or (d) of this section;

an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)).

(2)

If, at any time after the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action, the employee may appeal the matter to the Board under subsection (a)(1) of this section.

(3)

Nothing in this section shall be construed to affect the right to trial de novo under any provision of law described in subsection (a)(1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a)(2) of this section.

(f)

In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.

(Added Pub. L. 95–454, title II, § 205, Oct. 13, 1978, 92 Stat. 1140; amended Pub. L. 96–54, § 2(a)(46), Aug. 14, 1979, 93 Stat. 384.)

5 - 4 - 6 - 5 - 3 Judicial review of decisions of the Merit Systems Protection Board

(a)

(1)

Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Boardmay obtain judicial review of the order or decision.

(2)

The Board shall be named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision on the merits on the underlying personnel action or on a request for attorney fees, in which case the agency responsible for taking the personnel action shall be the respondent.

(b)

(1)

(A)

Except as provided in subparagraph (B) and paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

(B)

A petition to review a final order or final decision of the Board that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) shall be filed in the United States Court of Appeals for the Federal Circuitor any court of appeals of competent jurisdiction. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

(2)

Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.

(c)In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be—

(1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2)

obtained without procedures required by law, rule, or regulation having been followed; or

(3)

unsupported by substantial evidence;

except that in the case of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court.

(d)

(1)

Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director may obtain review of any final order or decision of the Board by filing, within 60 days after the Board issues notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in the discretion of the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

(2)

This paragraph shall apply to any review obtained by the Director of the Office of Personnel Management that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D). The Director may obtain review of any final order or decision of the Board by filing, within 60 days after the Board issues notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction if the Director determines, in the discretion of the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the court of appeals.

(Added Pub. L. 95–454, title II, § 205, Oct. 13, 1978, 92 Stat. 1143; amended Pub. L. 97–164, title I, § 144, Apr. 2, 1982, 96 Stat. 45; Pub. L. 101–12, § 10, Apr. 10, 1989, 103 Stat. 35; Pub. L. 105–311, § 10(a), Oct. 30, 1998, 112 Stat. 2954; Pub. L. 112–199, title I, § 108, Nov. 27, 2012, 126 Stat. 1469; Pub. L. 113–170, § 2, Sept. 26, 2014, 128 Stat. 1894; Pub. L. 115–195, § 2(a), (b), July 7, 2018, 132 Stat. 1510.)

5 - 4 - 6 - 6 SERVICES TO EMPLOYEES (§§ 7901 to 7906)

5 - 4 - 6 - 6 - 1 Health service programs

(a)

The head of each agency of the Government of the United States may establish, within the limits of appropriations available, a health service program to promote and maintain the physical and mental fitness of employees under his jurisdiction.

(b)A health service program may be established by contract or otherwise, but only—

(1)

after consultation with the Secretary of Health, Education, and Welfare and consideration of its recommendations; and

(2)

in localities where there are a sufficient number of employees to warrant providing the service.

(c)A health service program is limited to—

(1)

treatment of on-the-job illness and dental conditions requiring emergency attention;

(2)

preemployment and other examinations;

(3)

referral of employees to private physicians and dentists; and

(4)

preventive programs relating to health.

(d)

The Secretary of Health, Education, and Welfare, on request, shall review a health service program conducted under this section and shall submit comment and recommendations to the head of the agency concerned.

(e)

When this section authorizes the use of the professional services of physicians, that authorization includes the use of the professional services of surgeons and osteopathic practitioners within the scope of their practice as defined by State law.

(f)

The health programs conducted by the Tennessee Valley Authority are not affected by this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 90–83, § 1(47), Sept. 11, 1967, 81 Stat. 209; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(9), Sept. 23, 1996, 110 Stat. 2869.)

5 - 4 - 6 - 6 - 2 Safety programs

(a)For the purpose of this section—

(1)

“employee” means an employee as defined by section 8101 of this title; and

(2)

“agency” means an agency in any branch of the Government of the United States (not including the United States Postal Service), including an instrumentality wholly owned by the United States, and the government of the District of Columbia.

(b)

The Secretary of Labor shall carry out a safety program under section 941(b)(1) of title 33 covering the employment of each employee of an agency.

(c)The President may—

(1)

establish by Executive order a safety council composed of representatives of the agencies and of labor organizations representing employees to serve as an advisory body to the Secretary in furtherance of the safety program carried out by the Secretary under subsection (b) of this section; and

(2)

undertake such other measures as he considers proper to prevent injuries and accidents to employees of the agencies.

(d)

The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his agency,encourage safe practices, and eliminate work hazards and health risks.

(e)Each agency shall—

(1)

keep a record of injuries and accidents to its employees whether or not they result in loss of time or in the payment or furnishing of benefits; and

(2)

make such statistical or other reports on such forms as the Secretary may prescribe by regulation.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 91–596, § 19(c), Dec. 29, 1970, 84 Stat. 1610; Pub. L. 105–241, § 2(b)(2), Sept. 28, 1998, 112 Stat. 1572.)

5 - 4 - 6 - 6 - 3 Protective clothing and equipment

Appropriations available for the procurement of supplies and material or equipment are available for the purchase and maintenance of special clothing and equipment for the protection of personnel in the performance of their assigned tasks. For the purpose of this section, “appropriations” includes funds made available by statute under section 9104 of title 31.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 531; Pub. L. 97–258, § 3(a)(16), Sept. 13, 1982, 96 Stat. 1063.)

5 - 4 - 6 - 6 - 4 Employee assistance programs relating to drug abuse and alcohol abuse

(a)

The head of each Executive agency shall, in a manner consistent with guidelines prescribed under subsection (b) of this section and applicable provisions of law, establish appropriate prevention, treatment, and rehabilitation programs and services for drug abuse and alcohol abuse for employees in or under such agency.

(b)

The Office of Personnel Management shall, after such consultations as the Office considers appropriate, prescribe guidelines for programs and services under this section.

(c)

The Secretary of Health and Human Services, on request of the head of an Executive agency, shall review any program or service provided under this section and shall submit comments and recommendations to the head of the agency concerned.

(Added Pub. L. 99–570, title VI, § 6004(a), Oct. 27, 1986, 100 Stat. 3207–159.)

5 - 4 - 6 - 6 - 5 Programs to encourage commuting by means other than single-occupancy motor vehicles

(a)For the purpose of this section—

(1)

the term “employee” means an employee as defined by section 2105, a member of a uniformed service, and a student who provides voluntary services under section 3111;

(2)the term “agency” means—

(A)

an Executive agency;

(B)

an entity of the legislative branch; and

(C)

the judicial branch;

(3)

the term “entity of the legislative branch” means the House of Representatives, the Senate, the Office of the Architect of the Capitol(including the Botanic Garden), the Capitol Police, the Congressional Budget Office, the Copyright Royalty Tribunal, the Government Publishing Office, the Library of Congress, and the Office of Technology Assessment; and

(4)

the term “transit pass” means a transit pass as defined by section 132(f)(5) of the Internal Revenue Code of 1986.

(b)

(1)

The head of each agency may establish a program to encourage employees of such agency to use means other than single-occupancy motor vehicles to commute to or from work.

(2)A program established under this section may involve such options as—

(A)

transit passes (including cash reimbursements therefor, but only if a voucher or similar item which may be exchanged only for a transit pass is not readily available for direct distribution by the agency);

(B)

furnishing space, facilities, or services to bicyclists; and

(C)

any non-monetary incentive which the agency head may otherwise offer under any other provision of law or other authority.

(c)The functions of an agency head under this section shall—

(1)

with respect to the judicial branch, be carried out by the Director of the Administrative Office of the United States Courts;

(2)

with respect to the House of Representatives, be carried out by the Committee on House Administration of the House of Representatives; and

(3)

with respect to the Senate, be carried out by the Committee on Rules and Administration of the Senate.

(d)The President shall designate 1 or more agencies which shall—

(1)

prescribe guidelines for programs under this section;

(2)

on request, furnish information or technical advice on the design or operation of any program under this section; and

(3)submit to the President and the Congress, before January 1, 1995, and at least every 2 years thereafter, a written report on the operation of this section, including, with respect to the period covered by the report—

(A)

the number of agencies offering programs under this section;

(B)

a brief description of each of the various programs;

(C)

the extent of employee participation in, and the costs to the Government associated with, each of the various programs;

(D)

an assessment of any environmental or other benefits realized as a result of programs established under this section; and

(E)

any other matter which may be appropriate.

(Added Pub. L. 103–172, § 2(a), Dec. 2, 1993, 107 Stat. 1995; amended Pub. L. 107–296, title XIII, § 1314(a), Nov. 25, 2002, 116 Stat. 2296; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.)

5 - 4 - 6 - 6 - 6 Services of post-combat case coordinators

(a)Definitions.—For purposes of this section—

(1)

the terms “employee”, “agency”,[1] “injury”, “war-risk hazard”, and “hostile force or individual” have the meanings given those terms in section 8101; and

(2)

the term “qualified employee” means an employee as described in subsection (b).

(b)Requirement.—

The head of each agency shall, in a manner consistent with the guidelines prescribed under subsection (c), provide for the assignment of a post-combat case coordinator in the case of any employee of such agency who suffers aninjury or disability incurred, or an illness contracted, while in the performance of such employee’s duties, as a result of a war-risk hazard or during or as a result of capture, detention, or other restraint by a hostile force or individual.

(c)Guidelines.—The Office of Personnel Management shall, after such consultation as the Office considers appropriate, prescribe guidelines for the operation of this section. Under the guidelines, the responsibilities of a post-combat case coordinator shall include—

(1)

acting as the main point of contact for qualified employees seeking administrative guidance or assistance relating to benefits under chapter 81or 89;

(2)

assisting qualified employees in the collection of documentation or other supporting evidence for the expeditious processing of claims under chapter 81 or 89;

(3)

assisting qualified employees in connection with the receipt of prescribed medical care and the coordination of benefits under chapter 81 or 89;

(4)

resolving problems relating to the receipt of benefits under chapter 81 or 89; and

(5)ensuring that qualified employees are properly screened and receive appropriate treatment—

(A)

for post-traumatic stress disorder or other similar disorder stemming from combat trauma; or

(B)

for suicidal or homicidal thoughts or behaviors.

(d)Duration.—The services of a post-combat case coordinator shall remain available to a qualified employee until—

(1)

such employee accepts or declines a reasonable offer of employment in a position in the employee’s agency for which the employee is qualified, which is not lower than 2 grades (or pay levels) below the employee’s grade (or pay level) before the occurrence or onset of the injury, disability, or illness (as referred to in subsection (a)), and which is within the employee’s commuting area; or

(2)

such employee gives written notice, in such manner as the employingagency prescribes, that those services are no longer desired or necessary.

(Added Pub. L. 112–81, div. A, title XI, § 1106(a), Dec. 31, 2011, 125 Stat. 1613.)

5 - 4 - 7 Insurance and Annuities (§§ 8101 to 9009)

5 - 4 - 7 - 1 COMPENSATION FOR WORK INJURIES (§§ 8101 to 8193)

5 - 4 - 7 - 1 - 1 GENERALLY (§§ 8101 to 8152)

5 - 4 - 7 - 1 - 1 - 1 Definitions

For the purpose of this subchapter—

(1)“employee” means—

(A)

a civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States;

(B)

an individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;

(C)

an individual, other than an independent contractor or an individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;

(D)

an individual employed by the government of the District of Columbia;

(E)

an individual appointed to a position on the office staff of a former President under section 1(b) of the Act of August 25, 1958 (72 Stat. 838);

(F)

an individual selected pursuant to chapter 121 of title 28, and serving as a petit or grand juror; and

(G)

an individual who is a System member of the National Urban Search and Rescue Response System during a period of appointment into Federal service pursuant to section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act;

but does not include—

(i)

a commissioned officer of the Regular Corps of the Public Health Service;

(ii)

a commissioned officer of the Reserve Corps [1] of the Public Health Service on active duty;

(iii)

a commissioned officer of the Environmental Science Services Administration; or

(iv)

a member of the Metropolitan Police or the Fire Department of the District of Columbia who is pensioned or pensionable under sections 521–535 of title 4, District of Columbia Code; and

(2)

“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. The term “physician” includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist, and subject to regulation by the Secretary;

(3)

“medical, surgical, and hospital services and supplies” includes services and supplies by podiatrists, dentists, clinical psychologists, optometrists, chiropractors, osteopathic practitioners and hospitals within the scope of their practice as defined by State law. Reimbursable chiropractic services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist, and subject to regulation by the Secretary;

(4)

“monthly pay” means the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the injured employee resumes regular full-time employment with the United States, whichever is greater, except when otherwise determined under section 8113 of this title with respect to any period;

(5)

“injury” includes, in addition to injury by accident, a disease proximately caused by the employment, and damage to or destruction of medical braces, artificial limbs, and other prosthetic devices which shall be replaced or repaired, and such time lost while such device or appliance is being replaced or repaired; except that eyeglasses and hearing aids would not be replaced, repaired, or otherwise compensated for, unless the damages or destruction is incident to a personal injury requiring medical services;

(6)

“widow” means the wife living with or dependent for support on the decedent at the time of his death, or living apart for reasonable cause or because of his desertion;

(7)

“parent” includes stepparents and parents by adoption;

(8)

“brother” and “sister” mean one who at the time of the death of the employee is under 18 years of age or over that age and incapable of self-support, and include stepbrothers and stepsisters, halfbrothers and half sisters, and brothers and sisters by adoption, but do not include married brothers or married sisters;

(9)

“child” means one who at the time of the death of the employee is under 18 years of age or over that age and incapable of self-support, and includes stepchildren, adopted children, and posthumous children, but does not include married children;

(10)

“grandchild” means one who at the time of the death of the employee is under 18 years of age or over that age and incapable of self-support;

(11)

“widower” means the husband living with or dependent for support on the decedent at the time of her death, or living apart for reasonable cause or because of her desertion;

(12)

“compensation” includes the money allowance payable to an employee or his dependents and any other benefits paid for from the Employees’ Compensation Fund, but this does not in any way reduce the amount of the monthly compensation payable for disability or death;

(13)“war-risk hazard” means a hazard arising during a war in which the United States is engaged; during an armed conflict in which the United States is engaged, whether or not war has been declared; or during a war or armed conflict between military forces of any origin, occurring in the country in which an individual to whom this subchapter applies is serving; from—

(A)

the discharge of a missile, including liquids and gas, or the use of a weapon, explosive, or other noxious thing by a hostile force or individual or in combating an attack or an imagined attack by a hostile force or individual;

(B)

action of a hostile force or individual, including rebellion or insurrection against the United States or any of its allies;

(C)

the discharge or explosion of munitions intended for use in connection with a war or armed conflict with a hostile force or individual;

(D)

the collision of vessels on convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or

(E)

the operation of vessels or aircraft in a zone of hostilities or engaged in war activities;

(14)“hostile force or individual” means a nation, a subject of a foreign nation, or an individual serving a foreign nation—

(A)

engaged in a war against the United States or any of its allies;

(B)

engaged in armed conflict, whether or not war has been declared, against the United States or any of its allies; or

(C)

engaged in a war or armed conflict between military forces of any origin in a country in which an individual to whom this subchapter applies is serving;

(15)

“allies” means any nation with which the United States is engaged in a common military effort or with which the United States has entered into a common defensive military alliance;

(16)

“war activities” includes activities directly relating to military operations;

(17)“student” means an individual under 23 years of age who has not completed 4 years of education beyond the high school level and who is regularly pursuing a full-time course of study or training at an institution which is—

(A)

a school or college or university operated or directly supported by the United States, or by a State or local government or political subdivision thereof;

(B)

a school or college or university which has been accredited by a State or by a State-recognized or nationally recognized accrediting agency or body;

(C)

a school or college or university not so accredited but whose credits are accepted, on transfer, by at least three institutions which are so accredited, for credit on the same basis as if transferred from an institution so accredited; or

(D)

an additional type of educational or training institution as defined by the Secretary of Labor.

Such an individual is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 4 months and if he shows to the satisfaction of the Secretary that he has a bona fide intention of continuing to pursue a full-time course of study or training during the semester or other enrollment period immediately after the interim or during periods of reasonable duration during which, in the judgment of the Secretary, he is prevented by factors beyond his control from pursuing his education. A student whose 23rd birthday occurs during a semester or other enrollment period is deemed a student until the end of the semester or other enrollment period;

(18)

“price index” means the Consumer Price Index (all items—United States city average) published monthly by the Bureau of Labor Statistics; and

(19)

“organ” means a part of the body that performs a special function, and for purposes of this subchapter excludes the brain, heart, and back; and

(20)

“United States medical officers and hospitals” includes medical officers and hospitals of the Army, Navy, Air Force, Department of Veterans Affairs, and United States Public Health Service, and any other medical officer or hospital designated as a United States medical officer or hospital by the Secretary of Labor.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 532; Pub. L. 90–83, § 1(4), (48), Sept. 11, 1967, 81 Stat. 196, 209; Pub. L. 93–416, § 1, Sept. 7, 1974, 88 Stat. 1143; Pub. L. 96–499, title IV, § 421(b), Dec. 5, 1980, 94 Stat. 2608; Pub. L. 97–463, § 4, Jan. 12, 1983, 96 Stat. 2532; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 114–326, § 2(b)(1), Dec. 16, 2016, 130 Stat. 1972.)

5 - 4 - 7 - 1 - 1 - 2 Compensation for disability or death of employee

(a)The United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty, unless the injury or death is—

(1)

caused by willful misconduct of the employee;

(2)

caused by the employee’s intention to bring about the injury or death of himself or of another; or

(3)

proximately caused by the intoxication of the injured employee.

(b)Disability or death from a war-risk hazard or during or as a result of capture, detention, or other restraint by a hostile force or individual, suffered by an employee who is employed outside the continental United States or in Alaska or in the areas and installations in the Republic of Panama made available to the United States pursuant to the Panama Canal Treaty of 1977 and related agreements (as described in section 3(a) of the Panama Canal Act of 1979), is deemed to have resulted from personal injury sustained while in the performance of his duty, whether or not theemployee was engaged in the course of employment when the disability or disability resulting in death occurred or when he was taken by the hostile force or individual. This subsection does not apply to an individual—

(1)

whose residence is at or in the vicinity of the place of his employment and who was not living there solely because of the exigencies of his employment, unless he was injured or taken while engaged in the course of his employment; or

(2)

who is a prisoner of war or a protected individual under the Geneva Conventions of 1949 and is detained or utilized by the United States.

This subsection does not affect the payment of compensation under this subchapter derived otherwise than under this subsection, but compensation for disability or death does not accrue for a period for which pay, other benefit, or gratuity from the United States accrues to the disabled individual or his dependents on account of detention by the enemy or because of the same disability or death, unless that pay, benefit, or gratuity is refunded or renounced.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 534; Pub. L. 96–70, title I, § 1231(d), Sept. 27, 1979, 93 Stat. 470.)

5 - 4 - 7 - 1 - 1 - 3 Death gratuity for injuries incurred in connection with employee’s service with an Armed Force

(a)Death Gratuity Authorized.—

The United States shall pay a death gratuity of up to $100,000 to or for the survivor prescribed by subsection (d) immediately upon receiving official notification of the death of an employee who dies of injuries incurred in connection with the employee’s service with an Armed Force in a contingency operation.

(b)Retroactive Payment in Certain Cases.—

At the discretion of the Secretary concerned, subsection (a) may apply in the case of an employeewho died, on or after October 7, 2001, and before the date of enactment of this section, as a result of injuries incurred in connection with the employee’s service with an Armed Force in the theater of operations of Operation Enduring Freedom or Operation Iraqi Freedom.

(c)Relationship to Other Benefits.—

The death gratuity payable under this section shall be reduced by the amount of any death gratuity provided under section 413 of the Foreign Service Act of 1980, section 1603 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006, or any other law of the United States based on the same death.

(d)Eligible Survivors.—

(1)Subject to paragraph (5), a death gratuity payable upon the death of a person covered by subsection (a) shall be paid to or for the living survivor highest on the following list:

(A)

The employee’s surviving spouse.

(B)

The employee’s children, as prescribed by paragraph (2), in equal shares.

(C)If designated by the employee, any one or more of the following persons:

(i)

The employee’s parents or persons in loco parentis, as prescribed by paragraph (3).

(ii)

The employee’s brothers.

(iii)

The employee’s sisters.

(D)

The employee’s parents or persons in loco parentis, as prescribed by paragraph (3), in equal shares.

(E)

The employee’s brothers and sisters in equal shares.

Subparagraphs (C) and (E) of this paragraph include brothers and sisters of the half blood and those through adoption.

(2)Paragraph (1)(B) applies, without regard to age or marital status, to—

(A)

legitimate children;

(B)

adopted children;

(C)

stepchildren who were a part of the decedent’s household at the time of death;

(D)

illegitimate children of a female decedent; and

(E)illegitimate children of a male decedent—

(i)

who have been acknowledged in writing signed by the decedent;

(ii)

who have been judicially determined, before the decedent’s death, to be his children;

(iii)

who have been otherwise proved, by evidence satisfactory to the employing agency, to be children of the decedent; or

(iv)

to whose support the decedent had been judicially ordered to contribute.

(3)

Subparagraphs (C) and (D) of paragraph (1), so far as they apply to parents and persons in loco parentis, include fathers and mothers through adoption, and persons who stood in loco parentis to the decedent for a period of not less than one year at any time before the decedent became an employee. However, only one father and one mother, or their counterparts in loco parentis, may be recognized in any case, and preference shall be given to those who exercised a parental relationship on the date, or most nearly before the date, on which the decedent became an employee.

(4)

A person covered by this section may designate another person to receive an amount payable under this section. The designation shall indicate the percentage of the amount, to be specified only in 10 percent increments, that the designated person may receive. The balance of the amount of the death gratuity shall be paid to or for the living survivors of the person concerned in accordance with subparagraphs (A) through (E) of paragraph (1).

(5)

If a person entitled to all or a portion of a death gratuity under paragraph (1) or (4) dies before the person receives the death gratuity, it shall be paid to the living survivor next in the order prescribed by paragraph (1).

(6)

If a person covered by this section has a spouse, but designates a person other than the spouse to receive all or a portion of the amount payable under this section, the head of the agency, or other entity, in which that person is employed shall provide notice of the designation to the spouse.

(e)Definitions.—

(1)

The term “contingency operation” has the meaning given to that term in section 1482a(c) of title 10, United States Code.

(2)

The term “employee” has the meaning provided in section 8101 of this title, but also includes a nonappropriated fund instrumentality employee, as defined in section 1587(a)(1) of title 10.

(Added Pub. L. 110–181, div. A, title XI, § 1105(a), Jan. 28, 2008, 122 Stat. 347; amended Pub. L. 112–81, div. A, title XI, § 1121(a)(1), (b), Dec. 31, 2011, 125 Stat. 1616.)

5 - 4 - 7 - 1 - 1 - 4 Medical services and initial medical and other benefits

(a)The United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation. These services, appliances, and supplies shall be furnished—

(1)

whether or not disability has arisen;

(2)

notwithstanding that the employee has accepted or is entitled to receive benefits under subchapter III of chapter 83 of this title or another retirement system for employees of the Government; and

(3)

by or on the order of United States medical officers and hospitals, or, at the employee’s option, by or on the order of physicians and hospitals designated or approved by the Secretary.

The employee may initially select a physician to provide medical services, appliances, and supplies, in accordance with such regulations and instructions as the Secretary considers necessary, and may be furnished necessary and reasonable transportation and expenses incident to the securing of such services, appliances, and supplies. These expenses, when authorized or approved by the Secretary, shall be paid from the Employees’ CompensationFund.

(b)

The Secretary, under such limitations or conditions as he considers necessary, may authorize the employing agencies to provide for the initial furnishing of medical and other benefits under this section. The Secretary may certify vouchers for these expenses out of the Employees’ CompensationFund when the immediate superior of the employee certifies that the expense was incurred in respect to an injury which was accepted by the employing agency as probably compensable under this subchapter. The Secretary shall prescribe the form and content of the certificate.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 535; Pub. L. 90–83, § 1(49), Sept. 11, 1967, 81 Stat. 209; Pub. L. 93–416, § 2, Sept. 7, 1974, 88 Stat. 1144.)

5 - 4 - 7 - 1 - 1 - 5 Vocational rehabilitation

(a)

The Secretary of Labor may direct a permanently disabled individual whose disability is compensable under this subchapter to undergo vocational rehabilitation. The Secretary shall provide for furnishing the vocational rehabilitation services. In providing for these services, the Secretary, insofar as practicable, shall use the services or facilities of State agencies and corresponding agencies which cooperate with the Secretary of Health, Education, and Welfare in carrying out the purposes of chapter 4 of title 29, except to the extent that the Secretary of Labor provides for furnishing these services under section 8103 of this title. The cost of providing these services to individuals undergoing vocational rehabilitation under this section shall be paid from theEmployees’ Compensation Fund. However, in reimbursing a State or corresponding agency under an arrangement pursuant to this section the cost to the agency reimbursable in full under section 32(b)(1) of title 29 is excluded.

(b)

Notwithstanding section 8106, individuals directed to undergo vocational rehabilitation by the Secretary shall, while undergoing such rehabilitation, receive compensation at the rate provided in sections 8105 and 8110 of this title, less the amount of any earnings received from remunerative employment, other than employment undertaken pursuant to such rehabilitation.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 535; Pub. L. 93–416, § 3, Sept. 7, 1974, 88 Stat. 1144.)

5 - 4 - 7 - 1 - 1 - 6 Total disability

(a)

If the disability is total, the United States shall pay the employee during the disability monthly monetary compensation equal to 66⅔ percent of his monthly pay, which is known as his basic compensation for total disability.

(b)

The loss of use of both hands, both arms, both feet, or both legs, or the loss of sight of both eyes, is prima facie permanent total disability.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 535.)

5 - 4 - 7 - 1 - 1 - 7 Partial disability

(a)

(b)

The loss of use of both hands, both arms, both feet, or both legs, or the loss of sight of both eyes, is prima facie permanent total disability.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 535.)

5 - 4 - 7 - 1 - 1 - 8 Compensation schedule

(a)If there is permanent disability involving the loss, or loss of use, of a member or function of the body or involving disfigurement, the employee is entitled to basic compensation for the disability, as provided by the schedule in subsection (c) of this section, at the rate of 66⅔ percent of his monthly pay. The basic compensation is—

(1)

payable regardless of whether the cause of the disability originates in a part of the body other than that member;

(2)

payable regardless of whether the disability also involves another impairment of the body; and

(3)

in addition to compensation for temporary total or temporary partial disability.

(b)With respect to any period after payments under subsection (a) of this section have ended, an employee is entitled to compensation as provided by—

(1)

section 8105 of this title if the disability is total; or

(2)

section 8106 of this title if the disability is partial.

(c)The compensation schedule is as follows:

(1)

Arm lost, 312 weeks’ compensation.

(2)

Leg lost, 288 weeks’ compensation.

(3)

Hand lost, 244 weeks’ compensation.

(4)

Foot lost, 205 weeks’ compensation.

(5)

Eye lost, 160 weeks’ compensation.

(6)

Thumb lost, 75 weeks’ compensation.

(7)

First finger lost, 46 weeks’ compensation.

(8)

Great toe lost, 38 weeks’ compensation.

(9)

Second finger lost, 30 weeks’ compensation.

(10)

Third finger lost, 25 weeks’ compensation.

(11)

Toe other than great toe lost, 16 weeks’ compensation.

(12)

Fourth finger lost, 15 weeks’ compensation.

(13)Loss of hearing—

(A)

complete loss of hearing of one ear, 52 weeks’ compensation; or

(B)

complete loss of hearing of both ears, 200 weeks’ compensation.

(14)

Compensation for loss of binocular vision or for loss of 80 percent or more of the vision of an eye is the same as for loss of the eye.

(15)

Compensation for loss of more than one phalanx of a digit is the same as for loss of the entire digit. Compensation for loss of the first phalanx is one-half of the compensation for loss of the entire digit.

(16)

If, in the case of an arm or a leg, the member is amputated above the wrist or ankle, compensation is the same as for loss of the arm or leg, respectively.

(17)

Compensation for loss of use of two or more digits, or one or more phalanges of each of two or more digits, of a hand or foot, is proportioned to the loss of use of the hand or foot occasioned thereby.

(18)

Compensation for permanent total loss of use of a member is the same as for loss of the member.

(19)

Compensation for permanent partial loss of use of a member may be for proportionate loss of use of the member. The degree of loss of vision or hearing under this schedule is determined without regard to correction.

(20)

In case of loss of use of more than one member or parts of more than one member as enumerated by this schedule, the compensation is for loss of use of each member or part thereof, and the awards run consecutively. However, when the injury affects only two or more digits of the same hand or foot, paragraph (17) of this subsection applies, and when partial bilateral loss of hearing is involved, compensation is computed on the loss as affecting both ears.

(21)

For serious disfigurement of the face, head, or neck of a character likely to handicap an individual in securing or maintaining employment, proper and equitable compensation not to exceed $3,500 shall be awarded in addition to any other compensation payable under this schedule.

(22)

For permanent loss or loss of use of any other important external or internal organ of the body as determined by the Secretary, proper and equitable compensation not to exceed 312 weeks’ compensation for each organ so determined shall be paid in addition to any other compensation payable under this schedule.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 536; Pub. L. 90–83, § 1(50), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, §§ 4, 5, Sept. 7, 1974, 88 Stat. 1144, 1145.)

5 - 4 - 7 - 1 - 1 - 9 Reduction of compensation for subsequent injury to same member

The period of compensation payable under the schedule in section 8107(c) of this title is reduced by the period of compensation paid or payable under the schedule for an earlier injury if—

(1)

compensation in both cases is for disability of the same member or function or different parts of the same member or function or for disfigurement; and

(2)

the Secretary of Labor finds that compensation payable for the later disability in whole or in part would duplicate the compensation payable for the preexisting disability.

In such a case, compensation for disability continuing after the scheduled period starts on expiration of that period as reduced under this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 538; Pub. L. 90–83, § 1(51), Sept. 11, 1967, 81 Stat. 210.)

5 - 4 - 7 - 1 - 1 - 10 Beneficiaries of awards unpaid at death; order of precedence

(a)If an individual—

(1)

has sustained disability compensable under section 8107(a) of this title;

(2)

has filed a valid claim in his lifetime; and

(3)

dies from a cause other than the injury before the end of the period specified by the schedule;

the compensation specified by the schedule that is unpaid at his death, whether or not accrued or due at his death, shall be paid—

(A)

under an award made before or after the death;

(B)

for the period specified by the schedule;

(C)

to and for the benefit of the persons then in being within the classes and proportions and on the conditions specified by this section; and

(D)in the following order of precedence:

(i)

If there is no child, to the widow or widower.

(ii)

If there are both a widow or widower and a child or children, one-half to the widow or widower and one-half to the child or children.

(iii)

If there is no widow or widower, to the child or children.

(iv)

If there is no survivor in the above classes, to the parent or parents wholly or partly dependent for support on the decedent, or to other wholly dependent relatives listed by section 8133(a)(5) of this title, or to both in proportions provided by regulation.

(v)

If there is no survivor in the above classes and no burial allowance is payable under section 8134 of this title, an amount not exceeding that which would be expendable under section 8134 of this title if applicable shall be paid to reimburse a person equitably entitled thereto to the extent and in the proportion that he has paid the burial expenses, but a compensated insurer or other person obligated by law or contract to pay the burial expenses or a State or political subdivision or entity is deemed not equitably entitled.

(b)

Payments under subsection (a) of this section, except for an amount payable for a period preceding the death of the individual, are at the basic rate of compensation for permanent disability specified by section 8107(a) of this title even if at the time of death the individual was entitled to the augmented rate specified by section 8110 of this title.

(c)

A surviving beneficiary under subsection (a) of this section, except one under subsection (a)(D)(v), does not have a vested right to payment and must be alive to receive payment.

(d)

A beneficiary under subsection (a) of this section, except one under subsection (a)(D)(v), ceases to be entitled to payment on the happening of an event which would terminate his right to compensation for death under section 8133 of this title. When that entitlement ceases,compensation remaining unpaid under subsection (a) of this section is payable to the surviving beneficiary in accordance with subsection (a) of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 538; Pub. L. 90–83, § 1(52), Sept. 11, 1967, 81 Stat. 210.)

5 - 4 - 7 - 1 - 1 - 11 Augmented compensation for dependents

(a)For the purpose of this section, “dependent” means—

(1)a wife, if—

(A)

she is a member of the same household as the employee;

(B)

she is receiving regular contributions from the employee for her support; or

(C)

the employee has been ordered by a court to contribute to her support;

(2)a husband, if—

(A)

he is a member of the same household as the employee; or

(B)

he is receiving regular contributions from the employee for his support; or

(C)

the employee has been ordered by a court to contribute to his support;

(3)an unmarried child, while living with the employee or receiving regular contributions from the employee toward his support, and who is—

(A)

under 18 years of age; or

(B)

over 18 years of age and incapable of self-support because of physical or mental disability; and

(4)

a parent, while wholly dependent on and supported by the employee.

Notwithstanding paragraph (3) of this subsection, compensation payable for a child that would otherwise end because the child has reached 18 years of age shall continue if he is a student as defined by section 8101 of this title at the time he reaches 18 years of age for so long as he continues to be such a student or until he marries.

(b)A disabled employee with one or more dependents is entitled to have his basic compensation for disability augmented—

(1)

at the rate of 8⅓ percent of his monthly pay if that compensation is payable under section 8105 or 8107(a) of this title; and

(2)

at the rate of 8⅓ percent of the difference between his monthly pay and his monthly wage-earning capacity if that compensation is payable under section 8106(a) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 539; Pub. L. 90–83, § 1(53), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, § 6, Sept. 7, 1974, 88 Stat. 1145.)

5 - 4 - 7 - 1 - 1 - 12 Additional compensation for services of attendants or vocational rehabilitation

(a)

The Secretary of Labor may pay an employee who has been awarded compensation an additional sum of not more than $1,500 a month, as the Secretary considers necessary, when the Secretary finds that the service of an attendant is necessary constantly because the employee is totally blind, or has lost the use of both hands or both feet, or is paralyzed and unable to walk, or because of other disability resulting from the injury making him so helpless as to require constant attendance.

(b)

The Secretary may pay an individual undergoing vocational rehabilitation under section 8104 of this title additional compensation necessary for his maintenance, but not to exceed $200 a month.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 539; Pub. L. 90–83, § 1(54), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, § 7, Sept. 7, 1974, 88 Stat. 1145; Pub. L. 101–534, § 2, Nov. 7, 1990, 104 Stat. 2352.)

5 - 4 - 7 - 1 - 1 - 13 Maximum and minimum monthly payments

(a)

Except as provided by section 8138 of this title, the monthly rate of compensation for disability, including augmented compensation under section 8110 of this title but not including additionalcompensation under section 8111 of this title, may not be more than 75 percent of the monthly pay of the maximum rate of basic pay for GS–15, and in case of total disability may not be less than 75 percent of the monthly pay of the minimum rate of basic pay for GS–2 or the amount of the monthly pay of the employee, whichever is less.

(b)

The provisions of subsection (a) shall not apply to any employee whose disability is a result of an assault which occurs during an assassination or attempted assassination of a Federal official described under section 351(a) or 1751(a) of title 18, and was sustained in the performance of duty.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 540; Pub. L. 90–83, § 1(55), Sept. 11, 1967, 81 Stat. 210; Pub. L. 100–566, § 5, Oct. 31, 1988, 102 Stat. 2845.)

5 - 4 - 7 - 1 - 1 - 14 Increase or decrease of basic compensation

(a)If an individual—

(1)

was a minor or employed in a learner’s capacity at the time of injury; and

(2)

was not physically or mentally handicapped before the injury;

the Secretary of Labor, on review under section 8128 of this title after the time the wage-earning capacity of the individual would probably have increased but for the injury, shall recompute prospectively the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to the probable increased wage-earning capacity.

(b)

If an individual without good cause fails to apply for and undergo vocational rehabilitation when so directed under section 8104 of this title, the Secretary, on review under section 8128 of this titleand after finding that in the absence of the failure the wage-earning capacity of the individual would probably have substantially increased, may reduce prospectively the monetary compensation of the individual in accordance with what would probably have been his wage-earning capacity in the absence of the failure, until the individual in good faith complies with the direction of the Secretary.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 540; Pub. L. 90–83, § 1(100), Sept. 11, 1967, 81 Stat. 220; Pub. L. 93–416, § 8(a), Sept. 7, 1974, 88 Stat. 1145.)

5 - 4 - 7 - 1 - 1 - 15 Computation of pay

(a)For the purpose of this section—

(1)

“overtime pay” means pay for hours of service in excess of a statutory or other basic workweek or other basic unit of worktime, as observed by the employing establishment; and

(2)

“year” means a period of 12 calendar months, or the equivalent thereof as specified by regulations prescribed by the Secretary of Labor.

(b)

In computing monetary compensation for disability or death on the basis of monthly pay, that pay is determined under this section.

(c)

The monthly pay at the time of injury is deemed one-twelfth of the average annual earnings of the employee at that time. When compensation is paid on a weekly basis, the weekly equivalent of the monthly pay is deemed one-fifty-second of the average annual earnings. However, for so much of a period of total disability as does not exceed 90 calendar days from the date of the beginning of compensable disability, the compensation, in the discretion of the Secretary of Labor, may be computed on the basis of the actual daily wage of the employee at the time of injury in which event he may be paid compensation for the days he would have worked but for the injury.

(d)Average annual earnings are determined as follows:

(1)If the employee worked in the employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury and the employment was in a position for which an annual rate of pay—

(A)

was fixed, the average annual earnings are the annual rate of pay; or

(B)

was not fixed, the average annual earnings are the product obtained by multiplying his daily wage for the particular employment, or the average thereof if the daily wage has fluctuated, by 300 if he was employed on the basis of a 6-day workweek, 280 if employed on the basis of a 5½-day week, and 260 if employed on the basis of a 5-day week.

(2)

If the employee did not work in employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury, but the position was one which would have afforded employment for substantially a whole year, the average annual earnings are a sum equal to the average annual earnings of an employee of the same class working substantially the whole immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as determined under paragraph (1) of this subsection.

(3)

If either of the foregoing methods of determining the average annual earnings cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury having regard to the previous earnings of the employee in Federal employment, and of other employees of the United States in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the employee earned in the employment during the days employed within 1 year immediately preceding his injury.

(4)

If the employee served without pay or at nominal pay, paragraphs (1), (2), and (3) of this subsection apply as far as practicable, but the average annual earnings of the employee may not exceed the minimum rate of basic pay for GS–15. If the average annual earnings cannot be determined reasonably and fairly in the manner otherwise provided by this section, the average annual earnings shall be determined at the reasonable value of the service performed but not in excess of $3,600 a year.

(e)The value of subsistence and quarters, and of any other form of remuneration in kind for services if its value can be estimated in money, and premium pay under section 5545(c)(1) of this title are included as part of the pay, but account is not taken of—

(1)

overtime pay;

(2)

additional pay or allowance authorized outside the United States because of differential in cost of living or other special circumstances; or

(3)

bonus or premium pay for extraordinary service including bonus or pay for particularly hazardous service in time of war.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 540; Pub. L. 89–737, § 1(1), Nov. 2, 1966, 80 Stat. 1164.)

5 - 4 - 7 - 1 - 1 - 16 Determination of wage-earning capacity

(a)In determining compensation for partial disability, except permanent partial disability compensable under sections 8107–8109 of this title, the wage-earning capacity of an employee is determined by his actual earnings if his actual earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings of the employee do not fairly and reasonably represent his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity as appears reasonable under the circumstances is determined with due regard to—

(1)

the nature of his injury;

(2)

the degree of physical impairment;

(3)

his usual employment;

(4)

his age;

(5)

his qualifications for other employment;

(6)

the availability of suitable employment; and

(7)

other factors or circumstances which may affect his wage-earning capacity in his disabled condition.

(b)

Section 8114(d) of this title is applicable in determining the wage-earning capacity of anemployee after the beginning of partial disability.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 542.)

5 - 4 - 7 - 1 - 1 - 17 Limitations on right to receive compensation

(a)While an employee is receiving compensation under this subchapter, or if he has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, he may not receive salary, pay, or remuneration of any type from the United States, except—

(1)

in return for service actually performed;

(2)

pension for service in the Army, Navy, or Air Force;

(3)

other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same injury or the same death; and

(4)

retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed services.

However, eligibility for or receipt of benefits under subchapter III of chapter 83 of this title, or another retirement system for employees of the Government, does not impair the right of theemployee to compensation for scheduled disabilities specified by section 8107(c) of this title.

(b)

An individual entitled to benefits under this subchapter because of his injury, or because of the death of an employee, who also is entitled to receive from the United States under a provision of statute other than this subchapter payments or benefits for that injury or death (except proceeds of an insurance policy), because of service by him (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits he will receive. The individual shall make the election within 1 year after the injury or death or within a further time allowed for good cause by the Secretary of Labor. The election when made is irrevocable, except as otherwise provided by statute.

(c)

The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel.

(d)Notwithstanding the other provisions of this section, an individual receiving benefits for disability or death under this subchapter who is also receiving benefits under subchapter III of chapter 84 of this title or benefits under title II of the Social Security Act shall be entitled to all such benefits, except that—

(1)

benefits received under section 223 of the Social Security Act (on account of disability) shall be subject to reduction on account of benefits paid under this subchapter pursuant to the provisions of section 224 of the Social Security Act; and

(2)

in the case of benefits received on account of age or death under title II of the Social Security Act, compensation payable under this subchapter based on the Federal service of an employee shall be reduced by the amount of any such social security benefits payable that are attributable to Federal service of that employee covered by chapter 84 of this title. However, eligibility for or receipt of benefits under chapter 84 of this title, or benefits under title II of the Social Security Act by virtue of service covered by chapter 84 of this title, does not affect the right of theemployee to compensation for scheduled disabilities specified by section 8107(c) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 542; Pub. L. 90–83, § 1(56), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, § 9(a), Sept. 7, 1974, 88 Stat. 1145; Pub. L. 99–335, title II, § 207(e), June 6, 1986, 100 Stat. 595; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(3)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293.)

5 - 4 - 7 - 1 - 1 - 18 Time of accrual of right

(a)An employee other than a Postal Service employee is not entitled to compensation for the first 3 days of temporary disability, except—

(1)

when the disability exceeds 14 days;

(2)

when the disability is followed by permanent disability; or

(3)

as provided by sections 8103 and 8104 of this title.

(b)

A Postal Service employee is not entitled to compensation or continuation of pay for the first 3 days of temporary disability, except as provided under paragraph (3) of subsection (a). A Postal Service employee may use annual leave, sick leave, or leave without pay during that 3-day period, except that if the disability exceeds 14 days or is followed by permanent disability, the employee may have their sick leave or annual leave reinstated or receive pay for the time spent on leave without pay under this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543; Pub. L. 93–416, § 10, Sept. 7, 1974, 88 Stat. 1145; Pub. L. 109–435, title IX, § 901(a), Dec. 20, 2006, 120 Stat. 3253.)

5 - 4 - 7 - 1 - 1 - 19 Continuation of pay; election to use annual or sick leave

(a)

The United States shall authorize the continuation of pay of an employee, as defined in section 8101(1) of this title (other than those referred to in clause (B) or (E)), who has filed a claim for a period of wage loss due to a traumatic injury with his immediate superior on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title.

(b)Continuation of pay under this subchapter shall be furnished—

(1)

without a break in time, except as provided under section 8117(b), unless controverted under regulations of the Secretary;

(2)

for a period not to exceed 45 days; and

(3)

under accounting procedures and such other regulations as the Secretary may require.

(c)

An employee may use annual or sick leave to his credit at the time the disability begins, but his compensation for disability does not begin, and the time periods specified by section 8117 of this title do not begin to run, until termination of pay as set forth in subsections (a) and (b) or the use of annual or sick leave ends.

(d)

If a claim under subsection (a) is denied by the Secretary, payments under this section shall, at the option of the employee, be charged to sick or annual leave or shall be deemed overpayments of pay within the meaning of section 5584 of title 5, United States Code.

(e)

Payments under this section shall not be considered as compensation as defined by section 8101(12) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543; Pub. L. 93–416, § 11, Sept. 7, 1974, 88 Stat. 1145; Pub. L. 109–435, title IX, § 901(b), Dec. 20, 2006, 120 Stat. 3254.)

5 - 4 - 7 - 1 - 1 - 20 Notice of injury or death

An employee injured in the performance of his duty, or someone on his behalf, shall give notice thereof. Notice of a death believed to be related to the employment shall be given by an eligible beneficiary specified in section 8133 of this title, or someone on his behalf. A notice of injury or death shall—

(a)

be given within 30 days after the injury or death;

(b)

be given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly stamped and addressed;

(c)

be in writing;

(d)

state the name and address of the employee;

(e)

state the year, month, day, and hour when and the particular locality where the injury or death occurred;

(f)

state the cause and nature of the injury, or, in the case of death, the employment factors believed to be the cause; and

(g)

be signed by and contain the address of the individual giving the notice.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543; Pub. L. 93–416, § 12(a), Sept. 7, 1974, 88 Stat. 1146.)

5 - 4 - 7 - 1 - 1 - 21 Report of injury

Immediately after an injury to an employee which results in his death or probable disability, his immediate superior shall report to the Secretary of Labor. The Secretary may—

(1)

prescribe the information that the report shall contain;

(2)

require the immediate superior to make supplemental reports; and

(3)

obtain such additional reports and information from employees as are agreed on by the Secretary and the head of the employing agency.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543.)

5 - 4 - 7 - 1 - 1 - 22 Claim

Compensation under this subchapter may be allowed only if an individual or someone on his behalf makes claim therefor. The claim shall—

(1)

be made in writing within the time specified by section 8122 of this title;

(2)

be delivered to the office of the Secretary of Labor or to an individual whom the Secretary may designate by regulation, or deposited in the mail properly stamped and addressed to the Secretary or his designee;

(3)

be on a form approved by the Secretary;

(4)

contain all information required by the Secretary;

(5)

be sworn to by the individual entitled to compensation or someone on his behalf; and

(6)

except in case of death, be accompanied by a certificate of the physician of the employee stating the nature of the injury and the nature and probable extent of the disability.

The Secretary may waive paragraphs (3)–(6) of this section for reasonable cause shown.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 543; Pub. L. 93–416, § 13, Sept. 7, 1974, 88 Stat. 1147.)

5 - 4 - 7 - 1 - 1 - 23 Time for making claim

(a)An original claim for compensation for disability or death must be filed within 3 years after the injury or death. Compensation for disability or death, including medical care in disability cases, may not be allowed if claim is not filed within that time unless—

(1)

the immediate superior had actual knowledge of the injury or death within 30 days. The knowledge must be such to put the immediate superior reasonably on notice of an on-the-job injury or death; or

(2)

written notice of injury or death as specified in section 8119 of this title was given within 30 days.

(b)

In a case of latent disability, the time for filing claim does not begin to run until the employee has a compensable disability and is aware, or by the exercise of reasonable diligence should have been aware, of the causal relationship of the compensable disability to his employment. In such a case, the time for giving notice of injury begins to run when the employee is aware, or by the exercise of reasonable diligence should have been aware, that his condition is causally related to his employment, whether or not there is a compensable disability.

(c)

The timely filing of a disability claim because of injury will satisfy the time requirements for a death claim based on the same injury.

(d)The time limitations in subsections (a) and (b) of this section do not—

(1)

begin to run against a minor until he reaches 21 years of age or has had a legal representative appointed; or

(2)

run against an incompetent individual while he is incompetent and has no duly appointed legal representative; or

(3)

run against any individual whose failure to comply is excused by the Secretary on the ground that such notice could not be given because of exceptional circumstances.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 544; Pub. L. 90–83, § 1(57), Sept. 11, 1967, 81 Stat. 210; Pub. L. 93–416, § 14, Sept. 7, 1974, 88 Stat. 1147.)

5 - 4 - 7 - 1 - 1 - 24 Physical examinations

(a)

An employee shall submit to examination by a medical officer of the United States, or by a physician designated or approved by the Secretary of Labor, after the injury and as frequently and at the times and places as may be reasonably required. The employee may have a physiciandesignated and paid by him present to participate in the examination. If there is disagreement between the physician making the examination for the United States and the physician of theemployee, the Secretary shall appoint a third physician who shall make an examination.

(b)

An employee is entitled to be paid expenses incident to an examination required by the Secretary which in the opinion of the Secretary are necessary and reasonable, including transportation and loss of wages incurred in order to be examined. The expenses, when authorized or approved by the Secretary, are paid from the Employees’ Compensation Fund.

(c)

The Secretary shall fix the fees for examinations held under this section by physicians not employed by or under contract to the United States to furnish medical services to employees. The fees, when authorized or approved by the Secretary, are paid from the Employees’ CompensationFund.

(d)

If an employee refuses to submit to or obstructs an examination, his right to compensationunder this subchapter is suspended until the refusal or obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the period of the refusal or obstruction is deducted from the period for which compensation is payable to the employee.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 544.)

5 - 4 - 7 - 1 - 1 - 25 Findings and award; hearings

(a)The Secretary of Labor shall determine and make a finding of facts and make an award for or against payment of compensation under this subchapter after—

(1)

considering the claim presented by the beneficiary and the report furnished by the immediate superior; and

(2)

completing such investigation as he considers necessary.

(b)

(1)

Before review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of this section is entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a representative of the Secretary. At the hearing, the claimant is entitled to present evidence in further support of his claim. Within 30 days after the hearing ends, the Secretary shall notify the claimant in writing of his further decision and any modifications of the award he may make and of the basis of his decision.

(2)

In conducting the hearing, the representative of the Secretary is not bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by section 554 of this title except as provided by this subchapter, but may conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose, he shall receive such relevant evidence as the claimant adduces and such other evidence as he determines necessary or useful in evaluating the claim.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545; Pub. L. 90–83, § 1(58), Sept. 11, 1967, 81 Stat. 210.)

5 - 4 - 7 - 1 - 1 - 26 Misbehavior at proceedings

If an individual—

(1)

disobeys or resists a lawful order or process in proceedings under this subchapter before the Secretary of Labor or his representative; or

(2)

misbehaves during a hearing or so near the place of hearing as to obstruct it;

the Secretary or his representative shall certify the facts to the district court having jurisdiction in the place where he is sitting. The court, in a summary manner, shall hear the evidence as to the acts complained of and if the evidence warrants, punish the individual in the same manner and to the same extent as for a contempt committed before the court, or commit the individual on the same conditions as if the forbidden act had occurred with reference to the process of or in the presence of the court.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.)

5 - 4 - 7 - 1 - 1 - 27 Subpenas; oaths; examination of witnesses

The Secretary of Labor, on any matter within his jurisdiction under this subchapter, may—

(1)

issue subpenas for and compel the attendance of witnesses within a radius of 100 miles;

(2)

administer oaths;

(3)

examine witnesses; and

(4)

require the production of books, papers, documents, and other evidence.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.)

5 - 4 - 7 - 1 - 1 - 28 Representation; attorneys’ fees

(a)

A claimant may authorize an individual to represent him in any proceeding under this subchapter before the Secretary of Labor.

(b)

A claim for legal or other services furnished in respect to a case, claim, or award for compensation under this subchapter is valid only if approved by the Secretary.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.)

5 - 4 - 7 - 1 - 1 - 29 Review of award

(a)The Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application. The Secretary, in accordance with the facts found on review, may—

(1)

end, decrease, or increase the compensation previously awarded; or

(2)

award compensation previously refused or discontinued.

(b)The action of the Secretary or his designee in allowing or denying a payment under this subchapter is—

(1)

final and conclusive for all purposes and with respect to all questions of law and fact; and

(2)

not subject to review by another official of the United States or by a court by mandamus or otherwise.

Credit shall be allowed in the accounts of a certifying or disbursing official for payments in accordance with that action.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 545.)

5 - 4 - 7 - 1 - 1 - 30 Recovery of overpayments

(a)

When an overpayment has been made to an individual under this subchapter because of an error of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing later payments to which the individual is entitled. If the individual dies before the adjustment is completed, adjustment shall be made by decreasing later benefits payable under this subchapter with respect to the individual’s death.

(b)

Adjustment or recovery by the United States may not be made when incorrect payment has been made to an individual who is without fault and when adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.

(c)A certifying or disbursing official is not liable for an amount certified or paid by him when—

(1)

adjustment or recovery of the amount is waived under subsection (b) of this section; or

(2)

adjustment under subsection (a) of this section is not completed before the death of all individuals against whose benefits deductions are authorized.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 546.)

5 - 4 - 7 - 1 - 1 - 31 Assignment of claim

An assignment of a claim for compensation under this subchapter is void. Compensation and claims for compensation are exempt from claims of creditors.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 546.)

5 - 4 - 7 - 1 - 1 - 32 Subrogation of the United States

(a)If an injury or death for which continuation of pay or compensation is payable under this subchapter is caused under circumstances creating a legal liability on a person other than the United States to pay damages, the Secretary of Labor may require the beneficiary to—

(1)

assign to the United States any right of action he may have to enforce the liability or any right he may have to share in money or other property received in satisfaction of that liability; or

(2)

prosecute the action in his own name.

An employee required to appear as a party or witness in the prosecution of such an action is in an active duty status while so engaged.

(b)

A beneficiary who refuses to assign or prosecute an action in his own name when required by the Secretary is not entitled to compensation under this subchapter.

(c)

The Secretary may prosecute or compromise a cause of action assigned to the United States. When the Secretary realizes on the cause of action, he shall deduct therefrom and place to the credit of the Employees’ Compensation Fund the amount of continuation of pay or compensationalready paid to the beneficiary and the expense of realization or collection. Any surplus shall be paid to the beneficiary and credited on future payments of compensation payable for the same injury. However, the beneficiary is entitled to not less than one-fifth of the net amount of a settlement or recovery remaining after the expenses thereof have been deducted.

(d)If an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in the Panama Canal Company to pay damages under the law of a State, a territory or possession of the United States, the District of Columbia, or a foreign country, compensation is not payable until the individual entitled to compensation—

(1)

releases to the Panama Canal Company any right of action he may have to enforce the liability of the Panama Canal Company; or

(2)

assigns to the United States any right he may have to share in money or other property received in satisfaction of the liability of the Panama Canal Company.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 546; Pub. L. 90–83, § 1(60), Sept. 11, 1967, 81 Stat. 211; Pub. L. 117–263, div. E, title LIII, § 5305(b)(1), Dec. 23, 2022, 136 Stat. 3254.)

5 - 4 - 7 - 1 - 1 - 33 Adjustment after recovery from a third person

If an injury or death for which continuation of pay or compensation is payable under this subchapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to continuation of pay or compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as the result of suit or settlement by him or on his behalf, the beneficiary, after deducting therefrom the costs of suit and a reasonable attorney’s fee, shall refund to the United States the amount of continuation of pay or compensation paid by the United States and credit any surplus on future payments of compensationpayable to him for the same injury. No court, insurer, attorney, or other person shall pay or distribute to the beneficiary or his designee the proceeds of such suit or settlement without first satisfying or assuring satisfaction of the interest of the United States. The amount refunded to the United States shall be credited to the Employees’ Compensation Fund. If continuation of pay or compensation has not been paid to the beneficiary, the money or property shall be credited against continuation of pay or compensation payable to him by the United States for the same injury. However, the beneficiary is entitled to retain, as a minimum, at least one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted; and in addition to this minimum and at the time of distribution, an amount equivalent to a reasonable attorney’s fee proportionate to the refund to the United States.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 547; Pub. L. 90–83, § 1(61), Sept. 11, 1967, 81 Stat. 211; Pub. L. 93–416, § 15, Sept. 7, 1974, 88 Stat. 1147; Pub. L. 117–263, div. E, title LIII, § 5305(b)(2), Dec. 23, 2022, 136 Stat. 3254.)

5 - 4 - 7 - 1 - 1 - 34 Compensation in case of death

(a)If death results from an injury sustained in the performance of duty, the United States shall pay a monthly compensation equal to a percentage of the monthly pay of the deceased employee in accordance with the following schedule:

(1)

To the widow or widower, if there is no child, 50 percent.

(2)

To the widow or widower, if there is a child, 45 percent and in addition 15 percent for eachchild not to exceed a total of 75 percent for the widow or widower and children.

(3)

To the children, if there is no widow or widower, 40 percent for one child and 15 percent additional for each additional child not to exceed a total of 75 percent, divided among the children share and share alike.

(4)To the parents, if there is no widow, widower, or child, as follows—

(A)

25 percent if one parent was wholly dependent on the employee at the time of death and the other was not dependent to any extent;

(B)

20 percent to each if both were wholly dependent; or

(C)

a proportionate amount in the discretion of the Secretary of Labor if one or both were partly dependent.

If there is a widow, widower, or child, so much of the percentages are payable as, when added to the total percentages payable to the widow, widower, and children, will not exceed a total of 75 percent.

(5)To the brothers, sisters, grandparents, and grandchildren, if there is no widow, widower,child, or dependent parent, as follows—

(A)

20 percent if one was wholly dependent on the employee at the time of death;

(B)

30 percent if more than one was wholly dependent, divided among the dependents share and share alike; or

(C)

10 percent if no one is wholly dependent but one or more is partly dependent, divided among the dependents share and share alike.

If there is a widow, widower, child, or dependent parent, so much of the percentages are payable as, when added to the total percentages payable to the widow, widower, children, and dependent parents, will not exceed a total of 75 percent.

(b)The compensation payable under subsection (a) of this section is paid from the time of death until—

(1)

a widow, or widower dies or remarries before reaching age 55;

(2)

a child, a brother, a sister, or a grandchild dies, marries, or becomes 18 years of age, or if over age 18 and incapable of self-support becomes capable of self-support; or

(3)

a parent or grandparent dies, marries, or ceases to be dependent.

Notwithstanding paragraph (2) of this subsection, compensation payable to or for a child, abrother or sister, or grandchild that would otherwise end because the child, brother or sister,or grandchild has reached 18 years of age shall continue if he is a student as defined by section 8101 of this title at the time he reaches 18 years of age for so long as he continues to be such a student or until he marries. A widow or widower who has entitlements to benefits under this title derived from more than one husband or wife shall elect one entitlement to be utilized.

(c)

On the cessation of compensation under this section to or on account of an individual, the compensation of the remaining individuals entitled to compensation for the unexpired part of the period during which their compensation is payable, is that which they would have received if they had been the only individuals entitled to compensation at the time of the death of the employee.

(d)

When there are two or more classes of individuals entitled to compensation under this section and the apportionment of compensation under this section would result in injustice, the Secretary may modify the apportionment to meet the requirements of the case.

(e)In computing compensation under this section, the monthly pay is deemed not less than the minimum rate of basic pay for GS–2. However, the total monthly compensation may not exceed—

(1)

the monthly pay computed under section 8114 of this title, except for increases authorized by section 8146a of this title; or

(2)

75 percent of the monthly pay of the maximum rate of basic pay for GS–15.

(f)

Notwithstanding any funeral and burial expenses paid under section 8134, there shall be paid a sum of $200 to the personal representative of a deceased employee within the meaning of section 8101(1) of this title for reimbursement of the costs of termination of the decedent’s status as anemployee of the United States.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 547; Pub. L. 90–83, § 1(62), Sept. 11, 1967, 81 Stat. 211; Pub. L. 93–416, §§ 16(a), 17, 18, Sept. 7, 1974, 88 Stat. 1147, 1149; Pub. L. 101–303, § 3(1), May 29, 1990, 104 Stat. 251.)

5 - 4 - 7 - 1 - 1 - 35 Funeral expenses; transportation of body

(a)

If death results from an injury sustained in the performance of duty, the United States shall pay, to the personal representative of the deceased or otherwise, funeral and burial expenses not to exceed $800, in the discretion of the Secretary of Labor.

(b)The body of an employee whose home is in the United States, in the discretion of the Secretary, may be embalmed and transported in a hermetically sealed casket to his home or last place of residence at the expense of the Employees’ Compensation Fund if—

(1)the employee dies from—

(A)

the injury while away from his home or official station or outside the United States; or

(B)

from other causes while away from his home or official station for the purpose of receiving medical or other services, appliances, supplies, or examination under this subchapter; and

(2)

the relatives of the employee request the return of his body.

If the relatives do not request the return of the body of the employee, the Secretary may provide for its disposition and incur and pay from the Employees’ Compensation Fund the necessary and reasonable transportation, funeral, and burial expenses.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 548.)

5 - 4 - 7 - 1 - 1 - 36 Lump-sum payment

(a)The liability of the United States for compensation to a beneficiary in the case of death or of permanent total or permanent partial disability may be discharged by a lump-sum payment equal to the present value of all future payments of compensation computed at 4 percent true discount compounded annually if—

(1)

the monthly payment to the beneficiary is less than $50 a month;

(2)

the beneficiary is or is about to become a nonresident of the United States; or

(3)

the Secretary of Labor determines that it is for the best interest of the beneficiary.

The probability of the death of the beneficiary before the expiration of the period during which he is entitled to compensation shall be determined according to the most current United States Life Tables, as developed by the United States Department of Health, Education, and Welfare, which shall be updated from time to time, but the lump-sum payment to a widow or widower of the deceased employee may not exceed 60 months’ compensation. The probability of the happening of any other contingency affecting the amount or duration of compensation shall be disregarded.

(b)

On remarriage before reaching age 55 a widow or widower entitled to compensation under section 8133 of this title, shall be paid a lump sum equal to twenty-four times the monthlycompensation payment (excluding compensation on account of another individual) to which he was entitled immediately before the remarriage.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 548; Pub. L. 90–83, § 1(63), Sept. 11, 1967, 81 Stat. 211; Pub. L. 93–416, §§ 16(b), 19, 20, Sept. 7, 1974, 88 Stat. 1149; Pub. L. 101–303, § 3(2), May 29, 1990, 104 Stat. 251.)

5 - 4 - 7 - 1 - 1 - 37 Initial payments outside the United States

If an employee is injured outside the continental United States, the Secretary of Labor may arrange and provide for initial payment of compensation and initial furnishing of other benefits under this subchapter by an employee or agent of the United States designated by the Secretary for that purpose in the locality in which the employee was employed or the injury occurred.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 549.)

5 - 4 - 7 - 1 - 1 - 38 Compensation for noncitizens and nonresidents

(a)When the Secretary of Labor finds that the amount of compensation payable to an employee who is neither a citizen nor resident of the United States or Canada, or payable to a dependent of such an employee, is substantially disproportionate to compensation for disability or death payable in similar cases under local statute, regulation, custom, or otherwise at the place outside the continental United States or Canada where the employee is working at the time of injury, he may provide for payment of compensation on a basis reasonably in accord with prevailing local payments in similar cases by—

(1)

the adoption or adaption of the substantive features, by a schedule or otherwise, of local workmen’s compensation provisions or other local statute, regulation, or custom applicable in cases of personal injury or death; or

(2)

establishing special schedules of compensation for injury, death, and loss of use of members and functions of the body for specific classes of employees, areas, and places.

Irrespective of the basis adopted, the Secretary may at any time—

(A)

modify or limit the maximum monthly and total aggregate payments for injury, death, and medical or other benefits;

(B)

modify or limit the percentages of the wage of the employee payable as compensation for the injury or death; and

(C)

modify, limit, or redesignate the class or classes of beneficiaries entitled to death benefits, including the designation of persons, representatives, or groups entitled to payment under local statute or custom whether or not included in the classes of beneficiaries otherwise specified by this subchapter.

(b)In a case under this section, the Secretary or his designee may—

(1)

make a lump-sum award in the manner prescribed by section 8135 of this title when he or his designee considers it to be for the best interest of the United States; and

(2)

compromise and pay a claim for benefits, including a claim in which there is a dispute as to jurisdiction or other fact or a question of law.

Compensation paid under this subsection is instead of all other compensation from the United States for the same injury or death, and a payment made under this subsection is deemed compensation under this subchapter and is satisfaction of all liability of the United States in respect to the particular injury or death.

(c)

The Secretary may delegate to an employee or agency of the United States, with such limitations and right of review as he considers advisable, authority to process, adjudicate, commute by lump-sum award, compromise, and pay a claim or class of claims for compensation, and to provide other benefits, locally, under this section, in accordance with such regulations and instructions as the Secretary considers necessary. For this purpose, the Secretary may provide or transfer funds, including reimbursement of amounts paid under this subchapter.

(d)The Secretary may waive the application of this subchapter in whole or in part and for such period or periods as he may fix if he finds that—

(1)

conditions prevent the establishment of facilities for processing and adjudicating claims under this section; or

(2)

claimants under this section are alien enemies.

(e)

The Secretary may apply this section retrospectively with adjustment of compensation and benefits as he considers necessary and proper.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 549.)

5 - 4 - 7 - 1 - 1 - 39 Minimum limit modification for noncitizens and aliens

(a)

Except as provided by subsection (b) of this section, the minimum limit on monthly compensation for disability under section 8112 of this title and the minimum limit on monthly pay on which death compensation is computed under section 8133 of this title do not apply in the case of a noncitizen employee, or a class or classes of noncitizen employees, who sustain injury outside the continental United States. The Secretary of Labor may establish a minimum monthly pay on which death compensation is computed in the case of a class or classes of such noncitizenemployees.

(b)

The President may remove or modify the minimum limit on monthly compensation for disability under section 8112 of this title and the minimum limit on monthly pay on which deathcompensation is computed under section 8133 of this title in the case of an alien employee, or a class or classes of alien employees, of the Canal Zone Government or the Panama Canal Company.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 550.)

5 - 4 - 7 - 1 - 1 - 40 Employees of the District of Columbia

Compensation awarded to an employee of the government of the District of Columbia shall be paid in the manner provided by statute for the payment of the general expenses of the government of the District of Columbia.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 550.)

5 - 4 - 7 - 1 - 1 - 41 Members of the Reserve Officers’ Training Corps

(a)Subject to the provisions of this section, this subchapter applies to a member of, or applicant for membership in, the Reserve Officers’ Training Corps of the Army, Navy, or Air Force who suffers an injury, disability, or death incurred, or an illness contracted, in line of duty—

(1)

while engaged in a flight or in flight instruction under chapter 103 of title 10; or

(2)

during the period of the member’s attendance at training or a practice cruise under chapter 103 of title 10, United States Code, beginning when the authorized travel to the training or practice cruise begins and ending when authorized travel from the training or practice cruise ends.

(b)

For the purpose of this section, an injury, disability, death, or illness of a member referred to in subsection (a) may be considered as incurred or contracted in line of duty only if the injury, disability, or death is incurred, or the illness is contracted, by the member during a period described in that subsection. Subject to review by the Secretary of Labor, the Secretary of the military department concerned (under regulations prescribed by that Secretary), shall determine whether an injury, disability, or death was incurred, or an illness was contracted, by a member in line of duty.

(c)

In computing the compensation payable under this section, the monthly pay received by the injured or deceased individual, in cash and kind, is deemed $150.

(d)

The Secretary of the military department concerned shall cooperate fully with the Department of Labor in the prompt investigation and prosecution of a case involving the legal liability of a third party other than the United States.

(e)

An individual may not receive disability benefits under this section while on active duty with the armed forces, but these benefits may be reinstated when the individual is released from that active duty.

(f)

Expenses incurred by a military department in providing hospitalization, medical and surgical care, necessary transportation incident to that hospitalization or medical and surgical care, or in connection with a funeral and burial on behalf of an individual covered by subsection (a) of this section shall be reimbursed by the Secretary of Labor from the Employees’ Compensation Fund in accordance with this subchapter. However, reimbursement may not be made for hospitalization or medical or surgical care provided an individual by a military department in a facility of a military department.

(g)

For purposes of this section, the term “applicant for membership” includes a student enrolled, during a semester or other enrollment term, in a course which is part of Reserve Officers’ Training Corps instruction at an educational institution.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 550; Pub. L. 100–456, div. A, title VI, § 633(b), Sept. 29, 1988, 102 Stat. 1986; Pub. L. 105–261, div. A, title VI, § 655(a)–(c), Oct. 17, 1998, 112 Stat. 2053.)

5 - 4 - 7 - 1 - 1 - 42 Civil Air Patrol volunteers

(a)

Subject to the provisions of this section, this subchapter applies to a volunteer civilian member of the Civil Air Patrol, except a Civil Air Patrol Cadet under 18 years of age.

(b)In administering this subchapter for a member of the Civil Air Patrol covered by this section—

(1)

the monthly pay of a member is deemed the rate of basic pay payable for step 1 of grade GS–9 in the General Schedule under section 5332 of this title for the purpose of computingcompensation for disability or death;

(2)the percentages applicable to payments under section 8133 of this title are—

(A)

45 percent for section 8133(a)(2) of this title, if the member dies fully or currently insured under subchapter II of chapter 7 of title 42, with no additional payments for a child or children while the widow or widower remains eligible for payments under section 8133(a)(2) of this title;

(B)

20 percent for section 8133(a)(3) of this title for one child and 10 percent additional for each additional child, but not to exceed a total of 75 percent, if the member died fully or currently insured under subchapter II of chapter 7 of title 42; and

(C)

25 percent for section 8133(a)(4) of this title, if one parent was wholly dependent on the deceased member at the time of his death and the other was not dependent to any extent; 16 percent to each, if both were wholly dependent; and if one was or both were partly dependent, a proportionate amount in the discretion of the Secretary of Labor;

(3)

a payment may not be made under section 8133(a)(5) of this title;

(4)

“performance of duty” means only active service, and travel to and from that service, rendered in performance or support of operational missions of the Civil Air Patrol under direction of the Department of the Air Force and under written authorization by competent authority covering a specific assignment and prescribing a time limit for the assignment; and

(5)

the Secretary of Labor or his designee shall inform the Commissioner of Social Security when a claim is filed and eligibility for compensation is established under section 8133(a)(2) or (3) of this title, and the Commissioner of Social Security shall certify to the Secretary of Labor as to whether or not the member concerned was fully or currently insured under subchapter II of chapter 7 of title 42 at the time of his death.

(c)

The Secretary of Labor or his designee may inform the Secretary of the Air Force or his designee when a claim is filed. The Secretary of the Air Force, on request of the Secretary of Labor, shall advise him of the facts concerning the injury and whether or not the member was rendering service, or engaged in travel to or from service, in performance or support of an operational mission of the Civil Air Patrol at the time of injury. This subsection does not dispense with the report of the immediate superior of the member required by section 8120 of this title, or other reports agreed on under that section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 551; Pub. L. 98–94, title XII, § 1258(a), Sept. 24, 1983, 97 Stat. 702; Pub. L. 103–296, title I, § 108(e)(4), Aug. 15, 1994, 108 Stat. 1486.)

5 - 4 - 7 - 1 - 1 - 43 Peace Corps volunteers

(a)For the purpose of this section, “volunteer” means—

(1)

a volunteer enrolled in the Peace Corps under section 2504 of title 22;

(2)

a volunteer leader enrolled in the Peace Corps under section 2505 of title 22; and

(3)

an applicant for enrollment as a volunteer or volunteer leader during a period of training under section 2507(a) of title 22 before enrollment.

(b)

Subject to the provisions of this section, this subchapter applies to a volunteer, except that entitlement to disability compensation payments does not commence until the day after the date of termination of his service as a volunteer.

(c)For the purpose of this subchapter—

(1)

a volunteer is deemed receiving monthly pay at the minimum rate for GS–7;

(2)

a volunteer leader referred to by section 2505 of title 22, or a volunteer with one or more minor children as defined in section 2504 of title 22, is deemed receiving monthly pay at the minimum rate for GS–11;

(3)an injury suffered by a volunteer when he is outside the several States and the District of Columbia is deemed proximately caused by his employment, unless the injury or disease is—

(A)

caused by willful misconduct of the volunteer;

(B)

caused by the volunteer’s intention to bring about the injury or death of himself or of another; or

(C)

proximately caused by the intoxication of the injured volunteer; and

(4)the period of service of an individual as a volunteer includes—

(A)

any period of training under section 2507(a) of title 22 before enrollment as a volunteer;and

(B)

the period between enrollment as a volunteer and the termination of service as a volunteer by the President or by death or resignation.

(d)

(1)

The Secretary shall authorize the Director of the Peace Corps to furnish medical benefits to avolunteer, who is injured during the volunteer’s period of service, for a period of 120 days following the termination of such service if the Director certifies that the volunteer’s injury probably meets the requirements under subsection (c)(3). The Secretary may then certify vouchers for these expenses for such volunteer out of the Employees’ Compensation Fund.

(2)

The Secretary shall prescribe the form and content of the certification required under paragraph (1).

(3)

A certification under paragraph (1) will cease to be effective if the volunteer sustains compensable disability in connection with volunteer service.

(4)

Nothing in this subsection may be construed to authorize the furnishing of any medical benefit that the Secretary of Labor is not otherwise authorized to reimburse for former Peace Corps volunteers who receive treatment for injury or disease proximately caused by their service in the Peace Corps in accordance with this chapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 552; Pub. L. 90–83, § 1(64), Sept. 11, 1967, 81 Stat. 212; Pub. L. 93–416, § 23(b), Sept. 7, 1974, 88 Stat. 1150; Pub. L. 115–256, title I, § 102, Oct. 9, 2018, 132 Stat. 3652.)

5 - 4 - 7 - 1 - 1 - 44 Job Corps enrollees; volunteers in service to America

(a)Subject to the provisions of this subsection, this subchapter applies to an enrollee in the Job Corps, except that compensation for disability does not begin to accrue until the day after the date on which the injured enrollee is terminated. In administering this subchapter for an enrollee covered by this subsection—

(1)

the monthly pay of an enrollee is deemed that received at the minimum rate for GS–2;

(2)

section 8113(a) of this title applies to an enrollee; and

(3)

“performance of duty” does not include an act of an enrollee while absent from his assigned post of duty, except while participating in an activity (including an activity while on pass or during travel to or from the post of duty) authorized by or under the direction and supervision of the Job Corps.

(b)

This subchapter applies to a volunteer in service to America who receives either a living allowance or a stipend under part A of subchapter VIII of chapter 34 of title 42, with respect to that service and training, to the same extent as enrollees of the Job Corps under subsection (a) of this section. However, for the purpose of the computation described in subsection (a)(1) of this section, the monthly pay of a volunteer is deemed that received at the minimum rate for GS–5 of the General Schedule under section 5332 of title 5, United States Code.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 553; Pub. L. 90–83, § 1(65), Sept. 11, 1967, 81 Stat. 212; Pub. L. 90–623, § 1(19), Oct. 22, 1968, 82 Stat. 1313; Pub. L. 93–416, § 8(b), Sept. 7, 1974, 88 Stat. 1145; Pub. L. 103–82, title III, § 384, Sept. 21, 1993, 107 Stat. 915.)

5 - 4 - 7 - 1 - 1 - 45 Members of the National Teacher Corps

Subject to the provisions of this section, this subchapter applies to a member of the National Teacher Corps. In administering this subchapter for a member covered by this section—

(1)“performance of duty” does not include an act of a member while—

(A)

on authorized leave; or

(B)

absent from his assigned post of duty, except while participating in an activity authorized by or under the direction or supervision of the Commissioner of Education; and

(2)

in computing compensation for disability or death, the monthly pay of a member is deemed his actual pay or that received at the minimum rate for GS–6, whichever is greater.

(Added Pub. L. 90–83, § 1(66)(A), Sept. 11, 1967, 81 Stat. 212.)

5 - 4 - 7 - 1 - 1 - 46 Student-employees

A student-employee as defined by section 5351 of this title who suffers disability or death as a result of personal injury arising out of and in the course of training, or incurred in the performance of duties in connection with that training, is considered for the purpose of this subchapter an employee who incurred the injury in the performance of duty.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 553.)

5 - 4 - 7 - 1 - 1 - 47 Administration

The Secretary of Labor shall administer, and decide all questions arising under, this subchapter. He may—

(1)

appoint employees to administer this subchapter; and

(2)

delegate to any employee of the Department of Labor any of the powers conferred on him by this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 553.)

5 - 4 - 7 - 1 - 1 - 48 Administration for the Panama Canal Commission and The Alaska Railroad

(a)The President, from time to time, may transfer the administration of this subchapter—

(1)

so far as employees of the Panama Canal Commission are concerned to the Commission; and

(2)

so far as employees of The Alaska Railroad are concerned to the general manager of The Alaska Railroad.

(b)

When administration is transferred under subsection (a) of this section, the expenses incident to physical examinations which are payable under section 8123 of this title shall be paid from appropriations for the Panama Canal Commission or for The Alaska Railroad, as the case may be, instead of from the Employees’ Compensation Fund. The President may authorize the Panama Canal Commission and the general manager of The Alaska Railroad to pay the compensation provided by this subchapter, including medical, surgical, and hospital services and supplies under section 8103 of this title and the transportation and burial expenses under sections 8103 and 8134 of this title, from appropriations for the Panama Canal Commission and for The Alaska Railroad, and these appropriations shall be reimbursed for the payments by transfer of funds from the Employees’Compensation Fund.

(c)

The President may authorize the Panama Canal Commission to waive, at its discretion, the making of the claim required by section 8121 of this title in the case of compensation to anemployee of the Panama Canal Commission for temporary disability, either total or partial.

(d)

When administration is transferred under subsection (a) of this section to the general manager of The Alaska Railroad, the Secretary of Labor is not divested of jurisdiction and a claimant is entitled to appeal from the decision of the general manager of The Alaska Railroad to the Secretary of Labor. The Secretary on receipt of an appeal shall, or on his own motion may, review the decision of the general manager of The Alaska Railroad, and in accordance with the facts found on review may proceed under section 8128 of this title. The Secretary shall provide the form and manner of taking an appeal.

(e)

The same right of appeal exists with respect to claims filed by employees of the Panama Canal Commission or their dependents in case of death, as is provided with respect to the claims of other employees to whom this subchapter applies, under section 8149 of this title. The Employees’Compensation Appeals Board referred to by section 8149 of this title has jurisdiction, under regulations prescribed by the Secretary, over appeals relating to claims of the employees or their dependents.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 553; Pub. L. 96–70, title III, § 3302(e)(9), Sept. 27, 1979, 93 Stat. 498.)

5 - 4 - 7 - 1 - 1 - 49 Cost-of-living adjustment of compensation

(a)

Compensation payable on account of disability or death which occurred more than one year before March 1 of each year shall be annually increased on that date by the amount determined by the Secretary of Labor to represent the percent change in the price index published for December of the preceding year over the price index published for the December of the year prior to the preceding year, adjusted to the nearest one-tenth of 1 percent.

(b)

The regular periodic compensation payments after adjustment under this section shall be fixed at the nearest dollar. However, the regular periodic compensation after adjustment shall reflect an increase of at least $1.

(c)

This section shall be applicable to persons excluded by section 15 of the Federal Employees’ Compensation Act Amendments of 1966 (Public Law 89–488) under the following statutes: Act of February 15, 1934 (48 Stat. 351); Act of June 26, 1936 (49 Stat. 2035); Act of April 8, 1935 (49 Stat. 115); Act of July 25, 1942 (56 Stat. 710); Public Law 84–955 (August 3, 1956); Public Law 77–784(December 2, 1942); Public Law 84–879 (August 1, 1956); Public Law 80–896 (July 3, 1948); Act of September 8, 1959 (73 Stat. 469). Benefit payments to these persons shall initially be increased by the total percentage of the increases in the price index from the base month of July 1966, to the next most recent base month following the effective date of this subsection.

(Added Pub. L. 90–83, § 1(67)(A), Sept. 11, 1967, 81 Stat. 212; amended Pub. L. 93–416, §§ 21, 24, Sept. 7, 1974, 88 Stat. 1149, 1150; Pub. L. 96–499, title IV, § 421(a), Dec. 5, 1980, 94 Stat. 2608.)

5 - 4 - 7 - 1 - 1 - 50 Employees’ Compensation Fund

(a)

There is in the Treasury of the United States the Employees’ Compensation Fund which consists of sums that Congress, from time to time, may appropriate for or transfer to it, and amounts that otherwise accrue to it under this subchapter or other statute. The Fund is available without time limit for the payment of compensation and other benefits and expenses, except administrative expenses, authorized by this subchapter or any extension or application thereof, except as otherwise provided by this subchapter or other statute. The Secretary of Labor shall submit annually to the Office of Management and Budget estimates of appropriations necessary for the maintenance of the Fund. For the purpose of this subsection, “administrative expenses” does not include expenses for legal services performed by or for the Secretary under sections 8131 and 8132of this title.

(b)

Before August 15 of each year, the Secretary shall furnish to each agency and instrumentality of the United States having an employee who is or may be entitled to compensation benefits under this subchapter or any extension or application thereof a statement showing the total cost of benefits and other payments made from the Employees’ Compensation Fund during the preceding July 1 through June 30 expense period on account of the injury or death of employees or individuals under the jurisdiction of the agency or instrumentality. Each agency and instrumentality shall include in its annual budget estimates for the fiscal year beginning in the next calendar year a request for an appropriation in an amount equal to the costs. Sums appropriated pursuant to the request shall be deposited in the Treasury to the credit of the Fund within 30 days after they are available. An agency or instrumentality not dependent on an annual appropriation shall make the deposit required by this subsection from funds under its control during the first fifteen days of October following the furnishing of the statement. If an agency or instrumentality (or part or function thereof) is transferred to another agency or instrumentality, the cost of compensationbenefits and other expenses paid from the Fund on account of the injury or death of employees of the transferred agency or instrumentality (or part or function) shall be included in costs of the receiving agency or instrumentality.

(c)

In addition to the contributions for the maintenance of the Employees’ Compensation Fund required by this section, the United States Postal Service, or a mixed ownership corporation as defined by section 9101(2) of title 31, or any other corporation or agency or instrumentality (or activity thereof) which is required by statute to submit an annual budget pursuant to or as provided by chapter 91 of title 31, shall pay an additional amount for its fair share of the cost of administration of this subchapter as determined by the Secretary. With respect to these corporations, agencies, and instrumentalities, the charges billed by the Secretary under this section shall include an additional amount for these costs, which shall be paid into the Treasury as miscellaneous receipts from the sources authorized and in the manner otherwise provided by this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 554; Pub. L. 90–83, § 1(68), Sept. 11, 1967, 81 Stat. 213; Pub. L. 93–416, §§ 25, 26, Sept. 7, 1974, 88 Stat. 1150; Pub. L. 94–273, § 42, Apr. 21, 1976, 90 Stat. 381; Pub. L. 97–258, § 3(a)(17), Sept. 13, 1982, 96 Stat. 1063.)

5 - 4 - 7 - 1 - 1 - 51 Forfeiture of benefits by convicted felons

(a)

Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this subchapter or subchapter III of this chapter, shall forfeit (as of the date of such conviction) any entitlement to any benefit such individual would otherwise be entitled to under this subchapter or subchapter III for any injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take under section 8106 or 8129.

(b)

(1)

Notwithstanding any other provision of this chapter (except as provided under paragraph (3)), no benefits under this subchapter or subchapter III of this chapter shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual’s conviction of an offense that constituted a felony under applicable law.

(2)

Such individual shall not be entitled to receive the benefits forfeited during the period of incarceration under paragraph (1), after such period of incarceration ends.

(3)

If an individual has one or more dependents as defined under section 8110(a), the Secretary of Labor may, during the period of incarceration, pay to such dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in section 8133(a)(1) through (5).

(c)

Notwithstanding the provision of section 552a of this title, or any other provision of Federal or State law, any agency of the United States Government or of any State (or political subdivision thereof) shall make available to the Secretary of Labor, upon written request, the names and Social Security account numbers of individuals who are confined in a jail, prison, or other penal institution or correctional facility under the jurisdiction of such agency, pursuant to such individuals’ conviction of an offense that constituted a felony under applicable law, which the Secretary of Labor may require to carry out the provisions of this section.

(Added Pub. L. 103–333, title I, § 101(a)(1), Sept. 30, 1994, 108 Stat. 2546; amended Pub. L. 105–247, § 1, Oct. 9, 1998, 112 Stat. 1863.)

5 - 4 - 7 - 1 - 1 - 52 Regulations

The Secretary of Labor may prescribe rules and regulations necessary for the administration and enforcement of this subchapter including rules and regulations for the conduct of hearings under section 8124 of this title. The rules and regulations shall provide for an Employees’ Compensation Appeals Board of three individuals designated or appointed by the Secretary with authority to hear and, subject to applicable law and the rules and regulations of the Secretary, make final decisions on appeals taken from determinations and awards with respect to claims of employees. In adjudicating claims under section 8146 of this title, the Secretary may determine the nature and extent of the proof and evidence required to establish the right to benefits under this subchapter without regard to the date of injury or death for which claim is made.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 555; Pub. L. 90–83, § 1(71), Sept. 11, 1967, 81 Stat. 213.)

5 - 4 - 7 - 1 - 1 - 53 Effect on other statutes

(a)

This subchapter does not affect the maritime rights and remedies of a master or member of the crew of a vessel.

(b)

Section 8141 of this title and section 9491 of title 10 do not confer military or veteran status on any individual.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 555; Pub. L. 115–232, div. A, title VIII, § 809(c)(4), Aug. 13, 2018, 132 Stat. 1841.)

5 - 4 - 7 - 1 - 1 - 54 Civil service retention rights

(a)

In the event the individual resumes employment with the Federal Government, the entire time during which the employee was receiving compensation under this chapter shall be credited to the employee for the purposes of within-grade step increases, retention purposes, and other rights and benefits based upon length of service.

(b)Under regulations issued by the Office of Personnel Management—

(1)

the department or agency which was the last employer shall immediately and unconditionally accord the employee, if the injury or disability has been overcome within one year after the date of commencement of compensationor from the time compensable disability recurs if the recurrence begins after the injured employee resumes regular full-time employment with the United States, the right to resume his former or an equivalent position, as well as all other attendant rights which the employee would have had, or acquired, in his former position had he not been injured or disabled, including the rights to tenure, promotion, and safeguards in reductions-in-force procedures, and

(2)

the department or agency which was the last employer shall, if the injury or disability is overcome within a period of more than one year after the date of commencement of compensation, make all reasonable efforts to place, and accord priority to placing, the employee in his former or equivalent position within such department or agency, or within any other department or agency.

(Added Pub. L. 93–416, § 22, Sept. 7, 1974, 88 Stat. 1149; amended Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 7 - 1 - 1 - 55 Annual report

The Secretary of Labor shall, at the end of each fiscal year, prepare a report with respect to the administration of this chapter. Such report shall be submitted to Congress in accordance with the requirement with respect to submission under section 42 of the Longshore [1] Harbor Workers’ Compensation Act (33 U.S.C. 942).

(Added Pub. L. 104–66, title I, § 1102(b)(3)(A), Dec. 21, 1995, 109 Stat. 723.)

5 - 4 - 7 - 1 - 2 EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES (§§ 8171 to 8173)

5 - 4 - 7 - 1 - 2 - 1 Compensation for work injuries; generally

(a)The Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 901 et seq.) applies with respect to disability or death resulting from injury, as defined by section 2(2) of such Act (33 U.S.C. 902(2)), occurring to an employee of a nonappropriated fund instrumentality described by section 2105(c) of this title, or to a volunteer providing such an instrumentality with services accepted under section 1588 of title 10, who is—

(1)

a United States citizen or a permanent resident of the United States or a territory or possession of the United States employed outside the continental United States; or

(2)

employed inside the continental United States.

However, that part of section 3(a) of such Act (33 U.S.C. 903(a)) which follows the second comma does not apply to such an employee.

(b)

For the purpose of this subchapter, the term “employer” in section 2(4) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 902(4)) includes the nonappropriated fund instrumentalities described by section 2105(c) of this title.

(c)The Secretary of Labor may—

(1)

extend compensation districts established under section 39(b) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 939(b)), or establish new districts to include the areas outside the continental United States; and

(2)

assign to each district one or more deputy commissioners as the Secretary considers advisable.

(d)

Judicial proceedings under sections 18 and 21 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 918 and 921) with respect to an injury or death occurring outside the continental United States shall be instituted in the district court within the territorial jurisdiction of which is located the office of the deputy commissioner having jurisdiction with respect to the injury or death.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 555; Pub. L. 103–337, div. A, title X, §§ 1061(c), 1070(d)(8)(A), Oct. 5, 1994, 108 Stat. 2847, 2858; Pub. L. 104–106, div. A, title XV, § 1505(b)(1), Feb. 10, 1996, 110 Stat. 514.)

5 - 4 - 7 - 1 - 2 - 2 Employees not citizens or residents of the United States

In case of disability or death resulting from injury, as defined by section 2(2) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 902(2)), occurring to an employee of a nonappropriated fund instrumentality described by section 2105(c) of this title who is—

(1)

not a citizen or permanent resident of the United States or a territory or possession of the United States; and

(2)

employed outside the continental United States;

compensation shall be provided in accordance with regulations prescribed by the Secretary of the military department concerned and approved by the Secretary of Defense or regulations prescribed by the Secretary of Transportation, as the case may be.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 556; Pub. L. 103–272, § 4(b)(3), July 5, 1994, 108 Stat. 1361; Pub. L. 103–337, div. A, title X, § 1070(d)(8)(B), Oct. 5, 1994, 108 Stat. 2859; Pub. L. 104–106, div. A, title XV, § 1505(b)(2), Feb. 10, 1996, 110 Stat. 514.)

5 - 4 - 7 - 1 - 2 - 3 Liability under this subchapter exclusive

The liability of the United States or of a nonappropriated fund instrumentality described by section 2105(c) of this title, with respect to the disability or death resulting from injury, as defined by section 2(2) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 902(2)), of an employee referred to by sections 8171 and 8172 of this title, shall be determined as provided by this subchapter. This liability is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the disability or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 556; Pub. L. 103–337, div. A, title X, § 1070(d)(8)(B), Oct. 5, 1994, 108 Stat. 2859; Pub. L. 104–106, div. A, title XV, § 1505(b)(2), Feb. 10, 1996, 110 Stat. 514.)

5 - 4 - 7 - 2 RETIREMENT (§§ 8301 to 8351)

5 - 4 - 7 - 2 - 1 GENERAL PROVISIONS (§ 8301)

5 - 4 - 7 - 2 - 1 - 1 Uniform retirement date

(a)

Except as otherwise specifically provided by this title or other statute, retirement authorized by statute is effective on the first day of the month following the month in which retirement would otherwise be effective.

(b)

Notwithstanding subsection (a) of this section, the rate of active or retired pay or allowance is computed as of the date retirement would have occurred but for subsection (a) of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 557.)

5 - 4 - 7 - 2 - 2 FORFEITURE OF ANNUITIES AND RETIRED PAY (§§ 8311 to 8322)

5 - 4 - 7 - 2 - 2 - 1 Definitions

For the purpose of this subchapter—

(1)“employee” means—

(A)

an employee as defined by section 2105 of this title;

(B)

a Member of Congress as defined by section 2106 of this title and a Delegate to Congress;

(C)

a member or former member of a uniformed service; and

(D)

an individual employed by the government of the District of Columbia;

(2)“annuity” means a retirement benefit, including a disability insurance benefit and a dependent’s or survivor’s benefit under subchapter II of chapter 7 of title 42, and a monthly annuity under section 228b or 228e of title 45, payable by an agency of the Government of the United States or the government of the District of Columbia on the basis of service as a civilian employee and other service which is creditable to an employee toward the benefit under the statute, regulation, or agreement which provides the benefit, but does not include—

(A)

a benefit provided under statutes administered by the Department of Veterans Affairs;

(B)

pay or compensation which may not be diminished under section 1 of Article III of the Constitution of the United States;

(C)

that portion of a benefit payable under subchapter II of chapter 7 of title 42 which would be payable without taking into account, for any of the purposes of that subchapter, including determinations of periods of disability under section 416(i) of title 42, pay for services as an employee;

(D)

monthly annuity awarded under section 228b or 228e of title 45 before September 26, 1961, whether or not computed under section 228c(e) of title 45;

(E)

that portion of an annuity awarded under section 228b or 228e of title 45 after September 25, 1961, which would be payable without taking into account military service creditable under section 228c–1 of title 45;

(F)a retirement benefit, including a disability insurance benefit and a dependent’s or survivor’s benefit under subchapter II of chapter 7 of title 42, awarded before September 1, 1954, to an individual or his survivor or beneficiary, insofar as the individual, before September 1, 1954—

(i)

was convicted of an offense named by subsection (b) of section 8312 of this title, to the extent provided by that subsection; or

(ii)

violated section 8314 or 8315(a)(1) of this title; or

(G)a retirement benefit, including a disability insurance benefit and a dependent’s or survivor’s benefit under subchapter II of chapter 7 of title 42, awarded before September 26, 1961, to an individual or his survivor or beneficiary, insofar as the individual, before September 26, 1961—

(i)

was convicted of an offense named by subsection (c) of section 8312 of this title, to the extent provided by that subsection; or

(ii)

violated section 8315(a)(2) of this title; and

(3)“retired pay” means retired pay, retirement pay, retainer pay, or equivalent pay, payable under a statute to a member or former member of a uniformed service, and an annuity payable to an eligible beneficiary of the member or former member under chapter 73 of title 10 or section 5 of the Uniformed Services Contingency Option Act of 1953 (67 Stat. 504), but does not include—

(A)

a benefit provided under statutes administered by the Department of Veterans Affairs;

(B)retired pay, retirement pay, retainer pay, or equivalent pay, awarded before September 1, 1954, to an individual, insofar as the individual, before September 1, 1954—

(i)

was convicted of an offense named by subsection (b) of section 8312 of this title, to the extent provided by that subsection; or

(ii)

violated section 8314 or 8315(a)(1) of this title;

(C)retired pay, retirement pay, retainer pay, or equivalent pay, awarded before September 26, 1961, to an individual, insofar as the individual, before September 26, 1961—

(i)

was convicted of an offense named by subsection (c) of section 8312 of this title, to the extent provided by that subsection; or

(ii)

violated section 8315(a)(2) of this title; or

(D)an annuity payable to an eligible beneficiary of an individual under chapter 73 of title 10 or section 5 of the Uniformed Services Contingency Option Act of 1953 (67 Stat. 504), if the annuity was awarded to the beneficiary, or if retired pay was awarded to the individual, before September 26, 1961, insofar as the individual, on the basis of whose service the annuity was awarded, before September 26, 1961—

(i)

was convicted of an offense named by section 8312 of this title, to the extent provided by that section; or

(ii)

violated section 8314 or 8315 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 557; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274.)

5 - 4 - 7 - 2 - 2 - 2 Conviction of certain offenses

(1)

was convicted, before, on, or after September 1, 1954, of an offense named by subsection (b) of this section, to the extent provided by that subsection; or

(2)

was convicted, before, on, or after September 26, 1961, of an offense named by subsection (c) of this section, to the extent provided by that subsection.

The prohibition on payment of annuity or retired pay applies—

(A)

with respect to the offenses named by subsection (b) of this section, to the period after the date of the conviction or after September 1, 1954, whichever is later; and

(B)

with respect to the offenses named by subsection (c) of this section, to the period after the date of conviction or after September 26, 1961, whichever is later.

(b)The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 1, 1954:

(1)An offense within the purview of—

(A)

section 792 (harboring or concealing persons), 793 (gathering, transmitting, or losing defense information), 794 (gathering or delivering defense information to aid foreign government), or 798 (disclosure of classified information), of chapter 37 (relating to espionage and censorship) of title 18;

(B)

chapter 105 (relating to sabotage) of title 18;

(C)

section 2381 (treason), 2382 (misprision of treason), 2383 (rebellion or insurrection), 2384 (seditious conspiracy), 2385 (advocating overthrow of government), 2387 (activities affecting armed forces generally), 2388 (activities affecting armed forces during war), 2389 (recruiting for service against United States), or 2390 (enlistment to serve against United States), of chapter 115 (relating to treason, sedition, and subversive activities) of title 18;

(D)

section 10(b)(2), (3), or (4) of the Atomic Energy Act of 1946 (60 Stat. 766, 767), as in effect before August 30, 1954;

(E)

section 16(a) or (b) of the Atomic Energy Act of 1946 (60 Stat. 773), as in effect before August 30, 1954, insofar as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation; or

(F)

an earlier statute on which a statute named by subparagraph (A), (B), or (C) of this paragraph (1) is based.

(2)An offense within the purview of—

(A)

article 104 (aiding the enemy), article 103a (espionage), or article 106 (spies) of the Uniform Code of Military Justice (chapter 47 of title 10) or an earlier article on which article 104 or article 106, as the case may be, is based; or

(B)

a current article of the Uniform Code of Military Justice (or an earlier article on which the current article is based) not named by subparagraph (A) of this paragraph (2) on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved.

(3)Perjury committed under the statutes of the United States or the District of Columbia—

(A)in falsely denying the commission of an act which constitutes an offense within the purview of—

(i)

a statute named by paragraph (1) of this subsection; or

(ii)

an article or statute named by paragraph (2) of this subsection insofar as the offense is within the purview of an article or statute named by paragraph (1) or (2) (A) of this subsection;

(B)

in falsely testifying before a Federal grand jury, court of the United States, or court-martial with respect to his service as an employee in connection with a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States; or

(C)

in falsely testifying before a congressional committee in connection with a matter under inquiry before the congressional committee involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States.

(4)

Subornation of perjury committed in connection with the false denial or false testimony of another individual as specified by paragraph (3) of this subsection.

(c)The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 26, 1961:

(1)An offense within the purview of—

(A)

section 2272 (violation of specific sections) or 2273 (violation of sections generally of chapter 23 of title 42) of title 42 insofar as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation;

(B)

section 2274 (communication of restricted data), 2275 (receipt of restricted data), or 2276 (tampering with restricted data) of title 42; or

(C)

section 783 (conspiracy and communication or receipt of classified information) of title 50 or section 601 of the National Security Act of 1947(50 U.S.C. 421) [1] (relating to intelligence identities).

(2)

An offense within the purview of a current article of the Uniform Code of Military Justice (chapter 47 of title 10) or an earlier article on which the current article is based, as the case may be, on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved.

(3)

Perjury committed under the statutes of the United States or the District of Columbia in falsely denying the commission of an act which constitutes an offense within the purview of a statute named by paragraph (1) of this subsection.

(4)

Subornation of perjury committed in connection with the false denial of another individual as specified by paragraph (3) of this subsection.

(d)

(1)For purposes of subsections (b)(1) and (c)(1), an offense within the meaning of such subsections is established if the Attorney General of the United States certifies to the agency administering the annuity or retired payconcerned—

(A)

that an individual subject to this chapter has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances in which the conduct violates the provisions of law enumerated in subsections (b)(1) and (c)(1), or would violate such provisions had such conduct taken place within the United States, and that such conviction is not being appealed or that final action has been taken on such appeal;

(B)

that such conviction was obtained in accordance with procedures that provided the defendant due process rights comparable to such rights provided by the United States Constitution, and such conviction was based upon evidence which would have been admissible in the courts of the United States; and

(C)

that such conviction occurred after the date of enactment of this subsection.

(2)

Any certification made pursuant to this subsection shall be subject to review by the United States Court of Claims based upon the application of the individual concerned, or his or her attorney, alleging that any of the conditions set forth in subparagraphs [2] (A), (B), or (C) of paragraph (1), as certified by the Attorney General, have not been satisfied in his or her particular circumstances. Should the court determine that any of these conditions has not been satisfied in such case, the court shall order anyannuity or retirement benefit to which the person concerned is entitled to be restored and shall order that any payments which may have been previously denied or withheld to be paid by the department or agency concerned.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 559; Pub. L. 92–128, § 2(b), Sept. 25, 1971, 85 Stat. 348; Pub. L. 99–569, title VI, § 603, Oct. 27, 1986, 100 Stat. 3204; Pub. L. 103–337, div. A, title VI, § 639(a), Oct. 5, 1994, 108 Stat. 2791; Pub. L. 103–359, title VIII, § 805, Oct. 14, 1994, 108 Stat. 3441; Pub. L. 115–91, div. A, title X, § 1081(c)(3), Dec. 12, 2017, 131 Stat. 1599.)

5 - 4 - 7 - 2 - 2 - 3 Absence from the United States to avoid prosecution

(1)is under indictment, or has outstanding against him charges preferred under the Uniform Code of Military Justice—

(A)

after July 31, 1956, for an offense named by section 8312(b) of this title; or

(B)

after September 26, 1961, for an offense named by section 8312(c) of this title; and

(2)

willfully remains outside the United States, or its territories and possessions including the Commonwealth of Puerto Rico, for more than 1 year with knowledge of the indictment or charges, as the case may be.

(b)The prohibition on payment of annuity or retired pay under subsection (a) of this section applies to the period after the end of the 1-year period and continues until—

(1)

a nolle prosequi to the entire indictment is entered on the record or the charges are dismissed by competent authority;

(2)

the individual returns and thereafter the indictment or charges is or are dismissed; or

(3)

after trial by court or court-martial, the accused is found not guilty of the offense or offenses.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 561.)

5 - 4 - 7 - 2 - 2 - 4 Refusal to testify

(a)An individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual which is creditable toward the annuity or retired pay, subject to the exceptions in section 8311(2) and (3) of this title, if the individual, before, on, or after September 1, 1954, refused or refuses, or knowingly and willfully failed or fails, to appear, testify, or produce a book, paper, record, or other document, relating to his service as anemployee, before a Federal grand jury, court of the United States, court-martial, or congressional committee, in a proceeding concerning—

(1)

his past or present relationship with a foreign government; or

(2)

a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States.

(b)

The prohibition on payment of annuity or retired pay under subsection (a) of this section applies to the period after the date of the failure or refusal of the individual, or after September 1, 1954, whichever is later.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 561.)

5 - 4 - 7 - 2 - 2 - 5 Falsifying employment applications

(a)An individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual which is creditable toward the annuity or retired pay, subject to the exceptions in section 8311(2) and (3) of this title, if the individual knowingly and willfully made or makes a false, fictitious, or fraudulent statement or representation, or knowingly and willfully concealed or conceals a material fact—

(1)before, on, or after September 1, 1954, concerning his—

(A)past or present membership in, affiliation or association with, or support of the Communist Party, or a chapter, branch, or subdivision thereof, in or outside the United States, or other organization, party, or group advocating—

(i)

the overthrow, by force, violence, or other unconstitutional means, of the Government of the United States;

(ii)

the establishment, by force, violence, or other unconstitutional means, of a Communist totalitarian dictatorship in the United States; or

(iii)

the right to strike against the United States;

(B)

conviction of an offense named by subsection (b) of section 8312 of this title, to the extent provided by that subsection; or

(C)

failure or refusal to appear, testify, or produce a book, paper, record, or other document, as specified by section 8314 of this title; or

(2)

before, on, or after September 26, 1961, concerning his conviction of an offense named by subsection (c) of section 8312 of this title, to the extent provided by that subsection;

in a document executed by the individual in connection with his employment in, or application for, a civilian or military office or position in or under the legislative, executive, or judicial branch of the Government of the United States or the government of the District of Columbia.

(b)The prohibition on the payment of annuity or retired pay applies—

(1)

with respect to matters specified by subsection (a)(1) of this section, to the period after the statement, representation, or concealment of fact is made or occurs, or after September 1, 1954, whichever is later; and

(2)

with respect to matters specified by subsection (a)(2) of this section, to the period after the statement, representation, or concealment of fact is made or occurs, or after September 26, 1961, whichever is later.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 562.)

5 - 4 - 7 - 2 - 2 - 6 Refund of contributions and deposits

(a)When payment of annuity or retired pay is denied under this subchapter because an individual was convicted of an offense named by section 8312 of this title, to the extent provided by that section, or violated section 8314 or 8315 of this title—

(1)

the amount, except employment taxes, contributed by the individual toward the annuity, less the amount previously refunded or paid as annuitybenefits; and

(2)

deposits made under section 1438 of title 10 or section 5 of the Uniformed Services Contingency Option Act of 1953 (67 Stat. 504) to provide the eligible beneficiary with annuity for any period, less the amount previously paid as retired pay benefits;

shall be refunded, on appropriate application therefor—

(A)

to the individual;

(B)

if the individual is dead, to the beneficiary designated to receive refunds by or under the statute, regulation, or agreement under which the annuity, the benefits of which are denied under this subchapter, would have been payable; or

(C)

if a beneficiary is not designated, in the order of precedence prescribed by section 8342(c) of this title or section 2771 of title 10, as the case may be.

(b)A refund under subsection (a) of this section shall be made with interest at the rate and for the period provided under the statute, regulation, or agreement under which the annuity would have been payable. However, interest may not be computed—

(1)

if the individual was convicted of an offense named by section 8312(b) of this title, or violated section 8314 or 8315(a)(1) of this title, for the period after the conviction or commission of the violation, or after September 1, 1954, whichever is later; or

(2)

if the individual was convicted of an offense named by section 8312(c) of this title, or violated section 8315(a)(2) of this title, for the period after the conviction or commission of the violation, or after September 26, 1961, whichever is later.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 563.)

5 - 4 - 7 - 2 - 2 - 7 Repayment of annuity or retired pay properly paid; waiver

(a)

An individual, or his survivor or beneficiary, to whom payment of annuity is denied under this subchapter is not thereafter required to repay that part of the annuity otherwise properly paid to the individual, or to his survivor or beneficiary on the basis of the service of the individual, which is in excess of the aggregate amount of the contributions of the individual toward the annuity, with applicable interest.

(b)

An individual, including an eligible beneficiary under chapter 73 of title 10 or section 5 of the Uniformed Services Contingency Option Act of 1953 (67 Stat. 504), to whom payment of retired pay is denied under this subchapter is not thereafter required to repay retired pay otherwise properly paid to the individual or beneficiary which is paid in violation of this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 563.)

5 - 4 - 7 - 2 - 2 - 8 Restoration of annuity or retired pay

(a)If an individual who was convicted, before, on, or after September 1, 1954, of—

(1)

an offense named by section 8312 of this title; or

(2)

an offense constituting a violation of section 8314 or 8315 of this title;

is pardoned by the President, the right of the individual and his survivor or beneficiary to receive annuity or retired pay previously denied under this subchapter is restored as of the date of the pardon.

(b)

The President may restore, effective as of the date he prescribes, the right to receive annuity or retired pay which is denied, before, on, or after September 1, 1954, under section 8314 or 8315 of this title, to the individual and to his survivor or beneficiary.

(c)Payment of annuity or retired pay which results from pardon or restoration by the President under subsection (a) or (b) of this section may not be made for a period before—

(1)

the date of pardon referred to by subsection (a) of this section; or

(2)

the effective date of restoration referred to by subsection (b) of this section.

(d)

Credit for a period of service covered by a refund under section 8316 of this title is allowed only after the amount refunded has been redeposited.

(e)

The spouse of an individual whose annuity or retired pay is forfeited under section 8312 or 8313 after the date of enactment of this subsection shall be eligible for spousal pension benefits if the Attorney General of the United States determines that the spouse fully cooperated with Federal authorities in the conduct of a criminal investigation and subsequent prosecution of the individual which resulted in such forfeiture.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 563; Pub. L. 104–93, title III, § 305, Jan. 6, 1996, 109 Stat. 965.)

5 - 4 - 7 - 2 - 2 - 9 Removal of members of the uniformed services from rolls; restoration; reappointment

(a)

The President may drop from the rolls a member of a uniformed service who is deprived of retired pay under this subchapter.

(b)The President may restore—

(1)

military status to an individual dropped from the rolls to whom retired pay is restored under this subchapter or under section 2 of the Act of September 26, 1961 (75 Stat. 648); and

(2)

all rights and privileges to the individual and his beneficiaries of which he or they were deprived because his name was dropped from the rolls.

(c)

If the individual restored was a commissioned officer, the President alone may reappoint him to the grade and position on the retired list held when his name was dropped from the rolls.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 564.)

5 - 4 - 7 - 2 - 2 - 10 Offense or violation committed in compliance with orders

When it is established by satisfactory evidence that an individual—

(1)

was convicted of an offense named by section 8312 of this title; or

(2)

violated section 8314 or 8315 of this title; as a result of proper compliance with orders issued, in a confidential relationship, by an agency or other authority of the Government of the United States or the government of the District of Columbia, the right to receive annuity or retired pay may not be denied.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 564.)

5 - 4 - 7 - 2 - 2 - 11 Liability of accountable employees

An accountable employee may not be held responsible for a payment made in violation of this subchapter when the payment made is in due course and without fraud, collusion, or gross negligence.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 564.)

5 - 4 - 7 - 2 - 2 - 12 Effect on other statutes

This subchapter does not restrict authority under a statute, other than this subchapter, to deny or withhold benefits authorized by statute.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 564.)

5 - 4 - 7 - 2 - 3 CIVIL SERVICE RETIREMENT (§§ 8331 to 8351)

5 - 4 - 7 - 2 - 3 - 1 Definitions

For the purpose of this subchapter—

(1)“employee” means—

(A)

an employee as defined by section 2105 of this title;

(B)

the Architect of the Capitol, an employee of the Architect of the Capitol, and an employee of the Botanic Garden;

(C)

a Congressional employee as defined by section 2107 of this title (other than the Architect of the Capitol, an employee of the Architect of the Capitol, and an employee of the Botanic Garden), after he gives notice in writing to the official by whom he is paid of his desire to become subject to this subchapter;

(D)

a temporary Congressional employee appointed at an annual rate of pay,after he gives notice in writing to the official by whom he is paid of his desire to become subject to this subchapter;

(E)

a United States Commissioner whose total pay for services performed as Commissioner is not less than $3,000 in each of the last 3 consecutive calendar years ending after December 31, 1954;

(F)

an individual employed by a county committee established under section 590h(b) of title 16;

(G)

an individual first employed by the government of the District of Columbia before October 1, 1987;

(H)

an individual employed by Gallaudet College;

(I)

an individual appointed to a position on the office staff of a former President under section 1(b) of the Act of August 25, 1958 (72 Stat. 838);

(J)

an alien (i) who was previously employed by the Government, (ii) who is employed full time by a foreign government for the purpose of protecting or furthering the interests of the United States during an interruption of diplomatic or consular relations, and (iii) for whose services reimbursement is made to the foreign government by the United States;

(K)

an individual appointed to a position on the office staff of a former President, or a former Vice President under section 5 of the Presidential Transition Act of 1963, as amended (78 Stat. 153), who immediately before the date of such appointment was an employee as defined under any other subparagraph of this paragraph; and

(L)

an employee described in section 2105(c) who has made an election under section 8347(q)(1) to remain covered under this subchapter;

but does not include—

(i)

a justice or judge of the United States as defined by section 451 of title 28;

(ii)

an employee subject to another retirement system for Government employees (besides any employee excluded by clause (x), but including anyemployee who has made an election under section 8347(q)(2) to remain covered by a retirement system established for employees described in section 2105(c));

(iii)

an employee or group of employees in or under an Executive agency excluded by the Office of Personnel Management under section 8347(g) of this title;

(iv)

an individual or group of individuals employed by the government of the District of Columbia excluded by the Office under section 8347(h) of this title;

(v)

an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, excluded by the Director of the Administrative Office under section 8347(o) of this title;

(vi)

a construction employee or other temporary, part-time, or intermittent employee of the Tennessee Valley Authority;

(vii)

an employee under the Office of the Architect of the Capitol excluded by the Architect of the Capitol under section 8347(i) of this title;

(viii)

an employee under the Library of Congress excluded by the Librarian of Congress under section 8347(j) of this title;

(ix)

a student-employee as defined by section 5351 of this title;

(x)

an employee subject to the Federal Employees’ Retirement System;

(xi)

an employee under the Botanic Garden excluded by the Director or Acting Director of the Botanic Garden under section 8347(l) of this title; or

(xii)

a member of the Foreign Service (as described in section 103(6) of the Foreign Service Act of 1980), appointed after December 31, 1987.

Notwithstanding this paragraph, the employment of a teacher in the recess period between two school years in a position other than a teaching positionin which he served immediately before the recess period does not qualify the individual as an employee for the purpose of this subchapter. For the purpose of the preceding sentence, “teacher” and “teaching position” have the meanings given them by section 901 of title 20;

(2)

“Member” means a Member of Congress as defined by section 2106 of this title, after he gives notice in writing to the official by whom he is paid of his desire to become subject to this subchapter, but does not include any such Member of Congress who is subject to the Federal Employees’ Retirement System or who makes an election under section 8401(20) of this title not to be subject to such System;

(3)“basic pay” includes—

(A)

the amount a Member received from April 1, 1954, to February 28, 1955, as expense allowance under section 601(b) of the Legislative Reorganization Act of 1946 (60 Stat. 850), as amended; and that amount from January 3, 1953, to March 31, 1954, if deposit is made therefor as provided by section 8334 of this title;

(B)additional pay provided by—

(i)

subsection (a) of section 60e–7 of title 2 and the provisions of law referred to by that subsection; and

(ii)

sections 60e–8, 60e–9, 60e–10, 60e–11, 60e–12, 60e–13, and 60e–14 of title 2;

(C)

premium pay under section 5545(c)(1) of this title;

(D)

with respect to a law enforcement officer, premium pay under section 5545(c)(2) of this title;

(E)availability pay—

(i)

received by a criminal investigator under section 5545a of this title; or

(ii)

received after September 11, 2001, by a Federal air marshal or criminal investigator (as defined in section 5545a(a)(2)) of the Transportation Security Administration, subject to all restrictions and earning limitations imposed on criminal investigators receiving such pay under section 5545a, including the premium pay limitations under section 5547;

(F)

pay as provided in section 5545b(b)(2) and (c)(2);

(G)

with respect to a customs officer (referred to in subsection (e)(1) of section 5 of the Act of February 13, 1911), compensation for overtime inspectional services provided for under subsection (a) of such section 5, but not to exceed 50 percent of any statutory maximum in overtime pay for customs officers which is in effect for the year involved;

(H)

any amount received under section 5948 (relating to physicians comparability allowances); and

(I)

with respect to a border patrol agent, the amount of supplemental payreceived through application of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay for scheduled overtime within the regular tour of duty of the border patrol agent as provided in section 5550;

but does not include bonuses, allowances, overtime pay, military pay, paygiven in addition to the base pay of the position as fixed by law or regulation except as provided by subparagraphs (B) through (I) of this paragraph [1]retroactive pay under section 5344 of this title in the case of a retired or deceased employee, uniform allowances under section 5901 of this title, or lump-sum leave payments under subchapter VI of chapter 55 of this title. For an employee paid on a fee basis, the maximum amount of basic pay which may be used is $10,000;

(4)

“average pay” means the largest annual rate resulting from averaging anemployee’s or Member’s rates of basic pay in effect over any 3 consecutive years of creditable service or, in the case of an annuity under subsection (d) or (e)(1) of section 8341 of this title based on service of less than 3 years, over the totalservice, with each rate weighted by the time it was in effect;

(5)

“Fund” means the Civil Service Retirement and Disability Fund;

[(6)

Repealed. Pub. L. 96–499, title IV, § 403(b), Dec. 5, 1980, 94 Stat. 2606;]

(7)

“Government” means the Government of the United States, the governmentof the District of Columbia, Gallaudet University, and, in the case of an employee described in paragraph (1)(L), a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard described in section 2105(c);

(8)“lump-sum credit” means the unrefunded amount consisting of—

(A)

retirement deductions made from the basic pay of an employee orMember;

(B)

amounts deposited by an employee or Member covering earlier service,including any amounts deposited under section 8334(j) of this title; and

(C)

interest on the deductions and deposits at 4 percent a year to December 31, 1947, and 3 percent a year thereafter compounded annually to December 31, 1956, or, in the case of an employee or Member separated or transferred to a position in which he does not continue subject to this subchapter before he has completed 5 years of civilian service, to the date of the separation or transfer;

but does not include interest—

(i)

if the service covered thereby aggregates 1 year or less; or

(ii)

for the fractional part of a month in the total service;

(9)

“annuitant” means a former employee or Member who, on the basis of hisservice, meets all requirements of this subchapter for title to annuity and files claim therefor;

(10)

“survivor” means an individual entitled to annuity under this subchapter based on the service of a deceased employee, Member, or annuitant;

(11)

“survivor annuitant” means a survivor who files claim for annuity;

(12)

“service” means employment creditable under section 8332 of this title;

(13)“military service” means honorable active service—

(A)

in the armed forces;

(B)

in the Regular or Reserve Corps [2] of the Public Health Service after June 30, 1960; or

(C)

as a commissioned officer of the Environmental Science ServicesAdministration after June 30, 1961;

and includes service as a cadet at the United States Military Academy, the United States Air Force Academy, or the United States Coast GuardAcademy, or as a midshipman at the United States Naval Academy, but does not include service in the National Guard except when ordered to active duty in the service of the United States or full-time National Guard duty (as such term is defined in section 101(d) of title 10) if such service interrupts creditable civilian service under this subchapter and is followed by reemployment in accordance with chapter 43 of title 38 that occurs on or after August 1, 1990;

(14)

“Member service” means service as a Member and includes the period from the date of the beginning of the term for which elected or appointed to the date on which he takes office as a Member;

(15)

“price index” means the Consumer Price Index (all items—United States city average) published monthly by the Bureau of Labor Statistics;

(16)

“base month” means the month for which the price index showed a percent rise forming the basis for a cost-of-living annuity increase;

(17)

“normal-cost percentage” means the entry-age normal cost computed by the Office of Personnel Management in accordance with generally accepted actuarial practice and standards (using dynamic assumptions) and expressed as a level percentage of aggregate basic pay;

(18)“Fund balance” means the current net assets of the Fund available for payment of benefits, as determined by the Office in accordance with appropriate accounting standards, but does not include any amount attributable to—

(A)

the Federal Employees’ Retirement System; or

(B)

contributions made under the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 by or on behalf of any individual who became subject to the Federal Employees’ Retirement System;

(19)“unfunded liability” means the estimated excess of the present value of all benefits payable from the Fund to employees and Members, and formeremployees and Members, subject to this subchapter, and to their survivors, over the sum of—

(A)

the present value of deductions to be withheld from the future basic payof employees and Members currently subject to this subchapter and of future agency contributions to be made in their behalf; plus

(B)

the present value of Government payments to the Fund under section 8348(f) of this title; plus

(C)

the Fund balance as of the date the unfunded liability is determined;

(20)“law enforcement officer” means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including an employee engaged in this activity who is transferred to a supervisory or administrative position. For the purpose of this paragraph, “detention” includes the duties of—

(A)

employees of the Bureau of Prisons and Federal Prison Industries, Incorporated;

(B)

employees of the Public Health Service assigned to the field service of the Bureau of Prisons or of the Federal Prison Industries, Incorporated;

(C)

employees in the field service at Army or Navy disciplinary barracks or at confinement and rehabilitation facilities operated by any of the armed forces; and

(D)

employees of the Department of Corrections of the District of Columbia, its industries and utilities;

whose duties in connection with individuals in detention suspected or convicted of offenses against the criminal laws of the United States or of the District of Columbia or offenses against the punitive articles of the Uniformed Code of Military Justice (chapter 47 of title 10) require frequent (as determined by the appropriate administrative authority with the concurrence of the Office) direct contact with these individuals in their detention, direction, supervision, inspection, training, employment, care, transportation, or rehabilitation;

(21)

“firefighter” means an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position;

(22)“bankruptcy judge” means an individual—

(A)who is appointed under section 34 of the Bankruptcy Act (11 U.S.C. 62) or under section 404(d) of the Act of November 6, 1978 (Public Law 95–598; 92 Stat. 2549), and—

(i)

who is serving as a United States bankruptcy judge on March 31, 1984; or

(ii)

whose service as a United States bankruptcy judge at any time in the period beginning on October 1, 1979, and ending on July 10, 1984, is terminated by reason of death or disability; or

(B)

who is appointed as a bankruptcy judge under section 152 of title 28;

(23)“former spouse” means a former spouse of an individual—

(A)

if such individual performed at least 18 months of civilian service covered under this subchapter as an employee or Member, and

(B)

if the former spouse was married to such individual for at least 9 months;

(24)

“Indian court” means an Indian court as defined by section 201(3) of the Act entitled “An Act to prescribe penalties for certain acts of violence or intimidation, and for other purposes”, approved April 11, 1968 (25 U.S.C. 1301(3); 82 Stat. 77);

(25)

“magistrate judge” or “United States magistrate judge” means an individual appointed under section 631 of title 28;

(26)

“Court of Federal Claims judge” means a judge of the United States Court of Federal Claims who is appointed under chapter 7 of title 28 or who has served under section 167 of the Federal Courts Improvement Act of 1982;

(27)“Nuclear materials courier”—

(A)

means an employee of the Department of Energy, the duties of whose position are primarily to transport, and provide armed escort and protection during transit of, nuclear weapons, nuclear weapon components, strategic quantities of special nuclear materials or other materials related to national security; and

(B)

includes an employee who is transferred directly to a supervisory or administrative position within the same Department of Energy organization, after performing duties referred to in subparagraph (A) for at least 3 years;

(28)

“Government physician” has the meaning given that term under section 5948;

(29)“dynamic assumptions” means economic assumptions that are used in determining actuarial costs and liabilities of a retirement system and in anticipating the effects of long-term future—

(A)

investment yields;

(B)

increases in rates of basic pay; and

(C)

rates of price inflation;

(30)the term “air traffic controller” or “controller” means—

(A)

a controller within the meaning of section 2109(1); and

(B)

a civilian employee of the Department of Transportation or the Department of Defense who is the immediate supervisor of a person described in section 2109(1)(B);

(31)

“customs and border protection officer” means an employee in the Department of Homeland Security (A) who holds a position within the GS–1895 job series (determined applying the criteria in effect as of September 1, 2007) or any successor position, and (B) whose duties include activities relating to the arrival and departure of persons, conveyances, and merchandise at ports of entry, including any such employee who is transferred directly to a supervisory or administrative position in the Department of Homeland Security after performing such duties (as described in subparagraph (B)) in 1 or more positions (as described in subparagraph (A)) for at least 3 years;

(32)

“Director” means the Director of the Office of Personnel Management; and

(33)

“representative payee” means a person (including an organization) designated under section 8345(e)(1) to receive payments on behalf of a minor or an individual mentally incompetent or under other legal disability.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 564; Pub. L. 89–737, § 1(2), Nov. 2, 1966, 80 Stat. 1164; Pub. L. 90–83, § 1(72), Sept. 11, 1967, 81 Stat. 213; Pub. L. 90–623, § 1(21), Oct. 22, 1968, 82 Stat. 1313; Pub. L. 91–93, title I, § 101, title II, § 201(a), Oct. 20, 1969, 83 Stat. 136, 138; Pub. L. 92–352, title I, § 105(a), July 13, 1972, 86 Stat. 490; Pub. L. 93–350, § 2, July 12, 1974, 88 Stat. 355; Pub. L. 94–183, § 2(38), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–598, title III, § 338(e), Nov. 6, 1978, 92 Stat. 2681; Pub. L. 96–54, § 2(a)(47), Aug. 14, 1979, 93 Stat. 384; Pub. L. 96–499, title IV, § 403(b), Dec. 5, 1980, 94 Stat. 2606; Pub. L. 97–253, title III, § 306(a), Sept. 8, 1982, 96 Stat. 795; Pub. L. 98–249, § 3(b), Mar. 31, 1984, 98 Stat. 117; Pub. L. 98–271, § 3(b), Apr. 30, 1984, 98 Stat. 163; Pub. L. 98–299, § 3(b), May 25, 1984, 98 Stat. 214; Pub. L. 98–325, § 3(b), June 20, 1984, 98 Stat. 268; Pub. L. 98–353, title I, §§ 116(a), 121(g), July 10, 1984, 98 Stat. 343, 346; Pub. L. 98–531, § 2(a), Oct. 19, 1984, 98 Stat. 2704; Pub. L. 98–615, § 2(1), Nov. 8, 1984, 98 Stat. 3195; Pub. L. 99–335, title II, §§ 202, 207(f), June 6, 1986, 100 Stat. 591, 595; Pub. L. 100–53, § 2(a), June 18, 1987, 101 Stat. 367; Pub. L. 100–238, title I, §§ 112, 123, Jan. 8, 1988, 101 Stat. 1750, 1754; Pub. L. 100–679, § 13(a)(1), Nov. 17, 1988, 102 Stat. 4071; Pub. L. 101–474, § 5(m), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 101–508, title VII, § 7202(j)(1), Nov. 5, 1990, 104 Stat. 1388–337; Pub. L. 101–650, title III, §§ 306(c)(1), 321, Dec. 1, 1990, 104 Stat. 5110, 5117; Pub. L. 102–378, § 2(57), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 102–572, title IX, § 902(b), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 103–66, title XIII, § 13812(a), Aug. 10, 1993, 107 Stat. 670; Pub. L. 103–353, § 5(a), Oct. 13, 1994, 108 Stat. 3173; Pub. L. 105–261, div. C, title XXXI, § 3154(b), Oct. 17, 1998, 112 Stat. 2254; Pub. L. 105–277, div. A, § 101(h) [title VI, § 628(d)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–521; Pub. L. 106–571, § 3(a), (b)(2), Dec. 28, 2000, 114 Stat. 3054, 3055; Pub. L. 107–71, title I, § 105(c), Nov. 19, 2001, 115 Stat. 607; Pub. L. 108–18, § 2(a), Apr. 23, 2003, 117 Stat. 624; Pub. L. 108–176, title II, § 226(a)(1), Dec. 12, 2003, 117 Stat. 2529; Pub. L. 110–161, div. E, title V, § 535(a)(1), Dec. 26, 2007, 121 Stat. 2075; Pub. L. 110–181, div. A, title XI, § 1115(a), Jan. 28, 2008, 122 Stat. 361; Pub. L. 112–141, div. F, title I, § 100121(a)(1), July 6, 2012, 126 Stat. 906; Pub. L. 113–277, § 2(d), Dec. 18, 2014, 128 Stat. 3003; Pub. L. 114–136, § 2(c)(3), Mar. 18, 2016, 130 Stat. 305; Pub. L. 115–254, div. K, title I, § 1908(a), Oct. 5, 2018, 132 Stat. 3548; Pub. L. 116–126, § 2(a)(1), Mar. 18, 2020, 134 Stat. 174.)

5 - 4 - 7 - 2 - 3 - 2 Creditable service

(a)

The total service of an employee or Member is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.

(b)The service of an employee shall be credited from the date of original employment to the date of separation on which title to annuity is based in the civilian service of the Government. Except as provided in paragraph (13) [1] of this subsection, credit may not be allowed for a period of separation from the service in excess of 3 calendar days. The service includes—

(1)

employment as a substitute in the postal field service;

(2)

service in the Pan American Sanitary Bureau;

(3)

subject to sections 8334(c) and 8339(i) of this title, service performed before July 10, 1960, as an employee of a county committee established under section 590h(b) of title 16 or of a committee or an association of producers described by section 610(b) of title 7;

(4)

service as a student-employee as defined by section 5351 of this title only if he later becomes subject to this subchapter;

(5)

a period of satisfactory service of a volunteer or volunteer leader under chapter 34 of title 22 only if he later becomes subject to this subchapter;

(6)

employment under section 709 of title 32 or any prior corresponding provision of law;

(7)

a period of service of a volunteer under part A of title VIII of the Economic Opportunity Act of 1964, or a period of service of a full-time volunteer enrolled in a program of at least one year’s duration under part A, B,[2] or C of title I of the Domestic Volunteer Service Act of 1973 only if he later becomes subject to this subchapter;

(8)

subject to sections 8334(c) and 8339(i) of this title, service performed after February 18, 1929, and before noon on January 3, 1971, as a United States Capitol Guide;

(9)

subject to sections 8334(c) and 8339(i) of this title, service as a substituteteacher for the government of the District of Columbia after July 1, 1955, if such service is not credited for benefits under any other retirement system established by a law of the United States;

(10)

periods of imprisonment of a foreign national for which compensation is provided under section 410 of the Foreign Service Act of 1980, if the individual (A) was subject to this subchapter during employment with theGovernment last preceding imprisonment, or (B) is qualified for an annuity under this subchapter on the basis of other service of the individual;

(11)

subject to sections 8334(c) and 8339(i) of this title, service in any capacity of at least 130 days (or its equivalent) per calendar year performed after July 1, 1946, for the National Committee for a Free Europe; Free Europe Committee, Incorporated; Free Europe, Incorporated; Radio Liberation Committee; Radio Liberty Committee; subdivisions of any of those organizations; Radio Free Europe/Radio Liberty, Incorporated, Radio Free Asia; the Asia Foundation; or the Armed Forces Network, Europe (AFN–E), but only if such service is not credited for benefits under any other retirement system which is established for such entities and funded in whole or in part by the Government and only if the individual later becomes subject to this subchapter;

(12)

service as a justice or judge of the United States, as defined by section 451 of title 28, and service as a judge of a court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States, but no credit shall be allowed for such service if the employee is entitled to a salary or an annuity under section 371, 372, or 373 of title 28;

(13)

subject to sections 8334(c) and 8339(i) of this title, service performed on or after December 6, 1967, and before the effective date of this paragraph as an employee of the House Beauty Shop, only if he serves as such anemployee for a period of at least five years after such effective date;

(14)

one year of service to be credited for each year in which a Native of the Pribilof Islands performs service in the taking and curing of fur seal skins and other activities in connection with the administration of the Pribilof Islands, notwithstanding any period of separation from the service, and regardless of whether the Native who performs the service retires before, on, or after the effective date of this paragraph;

(15)

subject to sections 8334(c) and 8339(i) of this title, service performed on or after January 3, 1969, and before January 4, 1973, as the Washington Representative for Guam or the Washington Representative for the Virgin Islands, only if the individual serves as a Member for a period of at least five years after January 2, 1973;

(16)

service performed by any individual as an employee described in section 2105(c) of this title after June 18, 1952, and before January 1, 1966, if (A) suchservice involved conducting an arts and crafts, drama, music, library, service club, youth activities, sports, or recreation program (including any outdoor recreation program) for personnel of the armed forces, and (B) such individual is an employee subject to this subchapter on the day before the date of the enactment of the Nonappropriated Fund InstrumentalitiesEmployees’ Retirement Credit Act of 1986; and

(17)

service performed by any individual as an employee paid from nonappropriated funds of an instrumentality of the Department of Defenseor the Coast Guard described in section 2105(c) that is not covered by paragraph (16) and that is not otherwise creditable, if the individual elects (in accordance with regulations prescribed by the Office) to have such service credited under this paragraph.

The Office of Personnel Management shall accept the certification of the Secretary of Agriculture or his designee concerning service for the purpose of this subchapter of the type performed by an employee named by paragraph (3) of this subsection. The Office of Personnel Management shall accept the certification of the Secretary of Commerce or his designee concerning service for the purpose of this subchapter of the type performed by an employee named by paragraph (14) of this subsection. The Office of Personnel Management shall accept the certification of the Capitol Guide Board concerning service for the purpose of this subchapter of the type described in paragraph (8) of this subsection and performed by an employee. The Office of Personnel Management shall accept the certification of the Chief Administrative Officer of the House of Representatives concerning service for the purpose of this subchapter of the type described in paragraph (13) of this subsection. For the purpose of paragraph (5) of this subsection—

(A)

a volunteer and a volunteer leader are deemed receiving pay during their service at the respective rates of readjustment allowances payable under sections 2504(c) and 2505(1) of title 22; and

(B)

the period of an individual’s service as a volunteer or volunteer leader under chapter 34 of title 22 is the period between enrollment as a volunteer or volunteer leader and the termination of that service by the President or by death or resignation.

The Office of Personnel Management shall accept the certification of the Executive Director of the Board for International Broadcasting, and the Secretary of State with respect to the Asia Foundation and the Secretary of Defense with respect to the Armed Forces Network, Europe (AFN–E), concerning services for the purposes of this subchapter of the type described in paragraph (11) of this subsection. For the purpose of this subchapter, service of the type described in paragraph (15) of this subsection shall be considered Member service. The Office of Personnel Management shall accept, for the purposes of this subchapter, the certification of the head of a nonappropriated fund instrumentality of the United States concerning service of the type described in paragraph (16) or (17) of this subsection which was performed for such appropriated fund instrumentality. Service credited under paragraph (17) may not also be credited under any other retirement system provided for employees paid from nonappropriated funds of a nonappropriated fund instrumentality.

(c)

(1)Except as provided in paragraphs (2) and (4) of this subsection and subsection (d) of this section—

(A)

the service of an individual who first becomes an employee or Member before October 1, 1982, shall include credit for each period ofmilitary service performed before the date of the separation on which the entitlement to an annuity under this subchapter is based, subject to section 8332(j) of this title; and

(B)the service of an individual who first becomes an employee or Member on or after October 1, 1982, shall include credit for—

(i)

each period of military service performed before January 1, 1957, and

(ii)

each period of military service performed after December 31, 1956, and before the separation on which the entitlement to annuity under this subchapter is based, only if a deposit (with interest, if any) is made with respect to that period, as provided in section 8334(j) of this title.

(2)If an employee or Member is awarded retired pay based on any period ofmilitary service, the service of the employee or Member may not include credit for such period of military service unless the retired pay is awarded—

(A)based on a service-connected disability—

(i)

incurred in combat with an enemy of the United States; or

(ii)

caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 1101 of title 38; or

(B)

under chapter 1223 of title 10 (or under chapter 67 of that title as in effect before the effective date of the Reserve Officer Personnel Management Act).

(3)

(A)Notwithstanding paragraph (2) of this subsection, for purposes of computing a survivor annuity for a survivor of an employee or Member—

(i)

who was awarded retired pay based on any period of military service, and

(ii)

whose death occurs before separation from the service,

creditable service of the deceased employee or Member shall include each period of military service includable under subparagraph (A) or (B) of paragraph (1) of this subsection, as applicable. In carrying out this subparagraph, any amount deposited under section 8334(h) of this title shall be taken into account.

(B)A survivor annuity computed based on an amount which, under authority of subparagraph (A), takes into consideration any period of military service shall be reduced by the amount of any survivor’s benefits—

(i)

payable to a survivor (other than a child) under a retirement system for members of the uniformed services;

(ii)

if, or to the extent that, such benefits are based on such period of military service.

(C)The Office of Personnel Management shall prescribe regulations to carry out this paragraph, including regulations under which—

(i)

a survivor may elect not to be covered by this paragraph; and

(ii)

this paragraph shall be carried out in any case which involves a former spouse.

(4)

If, after January 1, 1997, an employee or Member waives retired pay that is subject to a court order for which there has been effective service on the Secretary concerned for purposes of section 1408 of title 10, the military service on which the retired pay is based may be credited as service for purposes of this subchapter only if the employee or Member authorizes theDirector to deduct and withhold from the annuity payable to the employee or Member under this subchapter an amount equal to the amount that, if the annuity payment was instead a payment of the employee’s or Member’s retired pay, would have been deducted and withheld and paid to the former spouse covered by the court order under such section 1408. The amount deducted and withheld under this paragraph shall be paid to that former spouse. The period of civil service employment by the employee or Member shall not be taken into consideration in determining the amount of the deductions and withholding or the amount of the payment to the former spouse. The Director of the Office of Personnel Management shall prescribe regulations to carry out this paragraph.

(d)For the purpose of section 8339(c)(1) of this title, a Member—

(1)

shall be allowed credit only for periods of military service not exceeding 5 years, plus military service performed by the Member on leaving his office, for the purpose of performing military service, during a war or national emergency proclaimed by the President or declared by Congress and before his final separation from service as Member; and

(2)

may not receive credit for military service for which credit is allowed for purpose of retired pay under other statute.

(e)

This subchapter does not affect the right of an employee or Member to retired pay, pension, or compensation in addition to an annuity payable under this subchapter.

(f)

Credit shall be allowed for leaves of absence without pay granted an employee while performing military service or while receiving benefits under subchapter I of chapter 81 of this title. An employee or former employee who returns to duty after a period of separation is deemed, for the purpose of this subsection, to have been in a leave of absence without pay for that part of the period in which he was receiving benefits under subchapter I of chapter 81 of this title or any earlier statute on which such subchapter is based. Except for a substitute in the postal field service and service described in paragraph (14) of subsection (b) of this section,,[3] credit may not be allowed for so much of other leaves of absence without pay as exceeds 6 months in the aggregate in a calendar year.

(g)

An employee who during the period of a war, or of a national emergency as proclaimed by the President or declared by Congress, leaves his position to enter the military service is deemed, for the purpose of this subchapter, as not separated from his civilian position because of that military service, unless he applies for and receives a lump-sum credit under this subchapter. However, theemployee is deemed as not retaining his civilian position after December 31, 1956, or after the expiration of 5 years of that military service, whichever is later.

(h)An employee who—

(1)

has at least 5 years’ Member service; and

(2)

serves as a Member at any time after August 2, 1946;

may not be allowed credit for service which is used in the computation of an annuity under section 8339(c) of this title.

(i)An individual who qualifies as an employee under section 8331(1)(E) of this title is entitled to credit for his service as a United States Commissioner, which is not credited for the purpose of this subchapter for service performed by him in a capacity other than Commissioner, on the basis of—

(1)

1/313 of a year for each day on which he performed service as a Commissioner before July 1, 1945; and

(2)

1/260 of a year for each day on which he performed service as a Commissioner after June 30, 1945.

Credit for service performed as Commissioner may not exceed 313 days in a year before July 1, 1945, or 260 days in a year after June 30, 1945. For the purpose of this subchapter, the employment and pay of a Commissioner is deemed on a daily basis when actually employed.

(j)

(1)

Notwithstanding any other provision of this section, military service, except military service covered by military leave with pay from a civilian position, performed by an individual after December 1956, the period of an individual’s services as a volunteer under part A of title VIII of the Economic Opportunity Act of 1964, the period of an individual’s service as a full-time volunteer enrolled in a program of at least 1 year’s duration under part A, B,2or C of title I of the Domestic Volunteer Service Act of 1973, and the period of an individual’s service as a volunteer or volunteer leader under chapter 34 of title 22, shall be excluded in determining the aggregate period of service on which an annuity payable under this subchapter to the individual or to his spouse, former spouse or child is based, if the individual, spouse, former spouse, or child is entitled, or would on proper application be entitled, at the time of that determination, to monthly old-age or survivors benefits under section 402 of title 42 based on the individual’s wages and self-employment income. If the military service or service as a volunteer under part A of title VIII of the Economic Opportunity Act of 1964, as a full-time volunteer enrolled in a program of at least 1 year’s duration under part A, B,2 or C of title I of the Domestic Volunteer Service Act of 1973, or as a volunteer or volunteer leader under chapter 34 of title 22 is not excluded by the preceding sentence, but on becoming 62 years of age, the individual or spouse, former spouse [4] becomes entitled, or would on proper application be entitled, to the described benefits, the Office of Personnel Managementshall redetermine the aggregate period of service on which the annuity is based, effective as of the first day of the month in which he or she becomes 62 years of age, so as to exclude that service. The Secretary of Health, Education, and Welfare, on request of the Office, shall inform the Office whether or not the individual, spouse, former spouse, or child is entitled at any named time to the described benefits. For the purpose of this subsection, the period of an individual’s service as a volunteer or volunteer leader under chapter 34 of title 22 is the period between enrollment as a volunteer or volunteer leader and termination of that service by the President or by death or resignation, and the period of an individual’s service as a volunteer under part A of title VIII of the Economic Opportunity Act of 1964 or under part A, B,2 or C of title I of the Domestic Volunteer Service Act of 1973 is the period between enrollment as a volunteer and termination of that service by the Director of the Office of Economic Opportunity or the Chief Executive Officer of the Corporation for National and Community Service, as appropriate, or by death or resignation.

(2)The provisions of paragraph (1) of this subsection relating to credit for military service shall not apply to—

(A)

any period of military service of an employee or Member with respect to which the employee or Member has made a deposit with interest, if any, under section 8334(j) of this title; or

(B)

the service of any employee or Member described in section 8332(c)(1)(B) of this title.

(3)

The provisions of paragraph (1) relating to credit for service as a volunteer or volunteer leader under the Economic Opportunity Act of 1964, part A, B,2 or C of title I of the Domestic Volunteer Service Act of 1973, or the Peace Corps Act shall not apply to any period of service as a volunteer or volunteer leader of an employee or Member with respect to which theemployee or Member has made the deposit with interest, if any, required by section 8334(l).

(k)

(1)

An employee who enters on approved leave without pay to serve as a full-time officer or employee of an organization composed primarily of employees as defined by section 8331(1) of this title, within 60 days after entering on that leave without pay, may file with his employing agency an election to receive full retirement credit for his periods of that leave withoutpay and arrange to pay currently into the Fund, through his employing agency, amounts equal to the retirement deductions and agency contributions that would be applicable if he were in pay status. If the election and all payments provided by this paragraph are not made, the employee may not receive credit for the periods of leave without pay occurring after July 17, 1966, notwithstanding the third [5] sentence of subsection (f) of this section. For the purpose of the preceding sentence, “employee” includes anemployee who was on approved leave without pay and serving as a full-time officer or employee of such an organization on July 18, 1966, and who filed a similar election before September 17, 1966.

(2)

An employee may deposit with interest an amount equal to retirement deductions representing any period or periods of approved leave withoutpay while serving, before July 18, 1966, as a full-time officer or employee of an organization composed primarily of employees as defined by section 8331(1) of this title. An employee who makes the deposit shall be allowed full retirement credit for the period or periods of leave without pay. If theemployee dies, a survivor as defined by section 8331(10) of this title may make the deposit. If the deposit is not made in full, retirement credit shall be allowed in accordance with the third 5 sentence of subsection (f) of this section.

(l)

(1)Any employee or Member who—

(A)

is of Japanese ancestry; and

(B)while a citizen of the United States or an alien lawfully admitted to the United States for permanent residence, was interned or otherwise detained at any time during World War II in any camp, installation, or other facility in the United States, or in any territory or possession of the United States, under any policy or program of the United States respecting individuals of Japanese ancestry which was established during World War II in the interests of national security pursuant to—

(i)

Executive Order Numbered 9066, dated February 19, 1942;

(ii)

section 67 of the Act entitled “An Act to provide a government for the Territory of Hawaii”, approved April 30, 1900 (chapter 339, Fifty-sixth Congress; 31 Stat. 153);

(iii)

Executive Order Numbered 9489, dated October 18, 1944;

(iv)

sections 4067 through 4070 of the Revised Statutes of the United States; or

(v)

any other statute, rule, regulation, or order; or

(C)

is of Aleut ancestry and while a citizen of the United States was interned or otherwise detained in, or relocated to any camp, installation, or other facility in the Territory of Alaska which was established during World War II for the purpose of the internment, detention, or relocation of Aleuts pursuant to any statute, rule, regulation, or order;

shall be allowed credit (as civilian service) for any period during which such employee or Member was so interned or otherwise detained after such employee became 18 years of age.

(2)

For the purpose of this subsection, “World War II” means the period beginning on December 7, 1941, and ending on December 31, 1946.

(m)

(1)Upon application to the Office of Personnel Management, any individual who is an employee on the date of the enactment of this subsection, and who has on such date or thereafter acquires 5 years or more of creditable civilian service under this section (exclusive of service for which credit is allowed under this subsection) shall be allowed credit (as service as a Congressional employee) for service before the date of the enactment of this subsection while employed by the Democratic Senatorial Campaign Committee, the Republican Senatorial Campaign Committee, the Democratic National Congressional Committee, or the Republican National Congressional Committee, if—

(A)

such employee has at least 4 years and 6 months of service on such committees as of December 12, 1980; and

(B)

such employee makes a deposit to the Fund in an amount equal to the amount which would be required under section 8334(c) of this title if such service were service as a Congressional employee.

(2)Upon application to the Office of Personnel Management, any individual who was an employee on the date of enactment of this paragraph, and who has on such date or thereafter acquires 5 years or more of creditable civilianservice under this section (exclusive of service for which credit is allowed under this subsection) shall be allowed credit (as service as a congressionalemployee) for service before December 31, 1990, while employed by the Democratic Senatorial Campaign Committee, the Republican Senatorial Campaign Committee, the Democratic National Congressional Committee, or the Republican National Congressional Committee, if—

(A)

such employee has at least 4 years and 6 months of service on such committees as of December 31, 1990; and

(B)

such employee makes a deposit to the Fund in an amount equal to the amount which would be required under section 8334(c) if suchservice were service as a congressional employee.

(3)

The Office shall accept the certification of the President of the Senate (or his designee) or the Speaker of the House (or his designee), as the case may be, concerning the service of, and the amount of compensation received by, an employee with respect to which credit is to be sought under this subsection.

(4)

An individual receiving credit for service for any period under this subsection shall not be granted credit for such service under the provisions of the Social Security Act.

(n)Any employee who—

(1)

served in a position in which the employee was excluded from coverage under this subchapter because the employee was covered under a retirement system established under section 10 of the Federal Reserve Act; and

(2)

transferred without a break in service to a position to which the employeewas appointed by the President, with the advice and consent of the Senate, and in which position the employee is subject to this subchapter,

shall be treated for all purposes of this subchapter as if any service that would have been creditable under the retirement system established under section 10 of the Federal Reserve Act was service performed while subject to this subchapter if any employee and employer deductions, contributions or rights with respect to the employee’s service are transferred from such retirement system to the Fund.

(o)

(1)

Notwithstanding any other provision of this subchapter, the service of an individual finally convicted of an offense described in paragraph (2) shall not be taken into account for purposes of this subchapter, except that this sentence applies only to service rendered as a Member (irrespective of when rendered). Any such individual (or other person determined under section 8342(c), if applicable) shall be entitled to be paid so much of such individual’slump-sum credit as is attributable to service to which the preceding sentence applies.

(2)

(A)An offense described in this paragraph is any offense described in subparagraph (B) for which the following apply:

(i)

Every act or omission of the individual (referred to in paragraph (1)) that is needed to satisfy the elements of the offense occurs while the individual is a Member, the President, the Vice President, or an elected official of a State or local government.

(ii)

Every act or omission of the individual that is needed to satisfy the elements of the offense directly relates to the performance of the individual’s official duties as a Member, the President, the Vice President, or an elected official of a State or local government.

(iii)The offense—

(I)is committed after the date of enactment of this subsection and—

(aa)

is described under subparagraph (B)(i), (iv), (xvi), (xix), (xxiii), (xxiv), or (xxvi); or

(bb)

is described under subparagraph (B)(xxix), (xxx), or (xxxi), but only with respect to an offense described under subparagraph (B)(i), (iv), (xvi), (xix), (xxiii), (xxiv), or (xxvi); or

(II)is committed after the date of enactment of the STOCK Act and—

(aa)

is described under subparagraph (B)(ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvii), (xviii), (xx), (xxi), (xxii), (xxv), (xxvii), or (xxviii); or

(bb)

is described under subparagraph (B)(xxix), (xxx), or (xxxi), but only with respect to an offense described under subparagraph (B)(ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvii), (xviii), (xx), (xxi), (xxii), (xxv), (xxvii), or (xxviii).

(B)An offense described in this subparagraph is only the following, and only to the extent that the offense is a felony:

(i)

An offense under section 201 of title 18 (relating to bribery of public officials and witnesses).

(ii)

An offense under section 203 of title 18 (relating to compensation to Member of Congress, officers, and others in matters affecting theGovernment).

(iii)

An offense under section 204 of title 18 (relating to practice in the United States Court of Federal Claims or the United States Court of Appeals for the Federal Circuit by Member of Congress).

(iv)

An offense under section 219 of title 18 (relating to officers andemployees acting as agents of foreign principals).

(v)

An offense under section 286 of title 18 (relating to conspiracy to defraud the Government with respect to claims).

(vi)

An offense under section 287 of title 18 (relating to false, fictitious or fraudulent claims).

(vii)

An offense under section 597 of title 18 (relating to expenditures to influence voting).

(viii)

An offense under section 599 of title 18 (relating to promise of appointment by candidate).

(ix)

An offense under section 602 of title 18 (relating to solicitation of political contributions).

(x)

An offense under section 606 of title 18 (relating to intimidation to secure political contributions).

(xi)

An offense under section 607 of title 18 (relating to place of solicitation).

(xii)

An offense under section 641 of title 18 (relating to public money, property or records).

(xiii)

An offense under section 666 of title 18 (relating to theft or bribery concerning programs receiving Federal funds).

(xiv)

An offense under section 1001 of title 18 (relating to statements or entries generally).

(xv)

An offense under section 1341 of title 18 (relating to frauds and swindles, including as part of a scheme to deprive citizens of honestservices thereby).

(xvi)

An offense under section 1343 of title 18 (relating to fraud by wire, radio, or television, including as part of a scheme to deprive citizens of honest services thereby).

(xvii)

An offense under section 1503 of title 18 (relating to influencing or injuring officer or juror).

(xviii)

An offense under section 1505 of title 18 (relating to obstruction of proceedings before departments, agencies, and committees).

(xix)

An offense under section 1512 of title 18 (relating to tampering with a witness, victim, or an informant).

(xx)

An offense under section 1951 of title 18 (relating to interference with commerce by threats of violence).

(xxi)

An offense under section 1952 of title 18 (relating to interstate and foreign travel or transportation in aid of racketeering enterprises).

(xxii)

An offense under section 1956 of title 18 (relating to laundering of monetary instruments).

(xxiii)

An offense under section 1957 of title 18 (relating to engaging in monetary transactions in property derived from specified unlawful activity).

(xxiv)

An offense under chapter 96 of title 18 (relating to racketeer influenced and corrupt organizations).

(xxv)

An offense under section 7201 of the Internal Revenue Code of 1986 (relating to attempt to evade or defeat tax).

(xxvi)

An offense under section 104(a) of the Foreign Corrupt Practices Act of 1977 (relating to prohibited foreign trade practices by domestic concerns).

(xxvii)

An offense under section 10(b) of the Securities Exchange Act of 1934 (relating to fraud, manipulation, or insider trading of securities).

(xxviii)

An offense under section 4c(a) of the Commodity Exchange Act (7 U.S.C. 6c(a)) (relating to fraud, manipulation, or insider trading of commodities).

(xxix)An offense under section 371 of title 18 (relating to conspiracy to commit offense or to defraud United States), to the extent of any conspiracy to commit an act which constitutes—

(I)

an offense under clause (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv), (xxv), (xxvi), (xxvii), or (xxviii); or

(II)

an offense under section 207 of title 18 (relating to restrictions on former officers, employees, and elected officials of the executive and legislative branches).

(xxx)Perjury committed under section 1621 of title 18 in falsely denying the commission of an act which constitutes—

(I)

(II)

an offense under clause (xxix), to the extent provided in such clause.

(xxxi)

Subornation of perjury committed under section 1622 of title 18 in connection with the false denial or false testimony of another individual as specified in clause (xxx).

(3)

An individual convicted of an offense described in paragraph (2) shall not, after the date of the final conviction, be eligible to participate in the retirement system under this subchapter or chapter 84 while serving as aMember.

(4)The Office of Personnel Management shall prescribe any regulations necessary to carry out this subsection. Such regulations shall include—

(A)

provisions under which interest on any lump-sum payment under the second sentence of paragraph (1) shall be limited in a manner similar to that specified in the last sentence of section 8316(b); and

(B)provisions under which the Office may provide for—

(i)

the payment, to the spouse or children of any individual referred to in the first sentence of paragraph (1), of any amounts which (but for this clause) would otherwise have been nonpayable by reason of such first sentence, subject to paragraph (5); and

(ii)

an appropriate adjustment in the amount of any lump-sum payment under the second sentence of paragraph (1) to reflect the application of clause (i).

(5)

Regulations to carry out clause (i) of paragraph (4)(B) shall include provisions to ensure that the authority to make any payment to the spouse or children of an individual under such clause shall be available only to the extent that the application of such clause is considered necessary and appropriate taking into account the totality of the circumstances, including the financial needs of the spouse or children, whether the spouse or children participated in an offense described in paragraph (2) of which such individual was finally convicted, and what measures, if any, may be necessary to ensure that the convicted individual does not benefit from any such payment.

(6)For purposes of this subsection—

(A)

the terms “finally convicted” and “final conviction” refer to a conviction (i) which has not been appealed and is no longer appealable because the time for taking an appeal has expired, or (ii) which has been appealed and the appeals process for which is completed;

(B)

the term “Member” has the meaning given such term by section 2106, notwithstanding section 8331(2); and

(C)

the term “child” has the meaning given such term by section 8341.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 567; Pub. L. 90–83, § 1(73), Sept. 11, 1967, 81 Stat. 214; Pub. L. 90–486, § 5(a), Aug. 13, 1968, 82 Stat. 757; Pub. L. 91–177, title I, § 112(a), Dec. 30, 1969, 83 Stat. 831; Pub. L. 91–510, title IV, § 442(b), Oct. 26, 1970, 84 Stat. 1191; Pub. L. 91–658, § 1, Jan. 8, 1971, 84 Stat. 1961; Pub. L. 92–297, § 7(1), May 16, 1972, 86 Stat. 144; Pub. L. 92–454, § 1, Oct. 2, 1972, 86 Stat. 760; Pub. L. 93–113, title VI, § 602, Oct. 1, 1973, 87 Stat. 417; Pub. L. 94–183, § 2(32), (33), (39), Dec. 31, 1975, 89 Stat. 1058, 1059; Pub. L. 95–382, § 1(a), Sept. 22, 1978, 92 Stat. 727; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(48), Aug. 14, 1979, 93 Stat. 384; Pub. L. 96–465, title II, § 2313, Oct. 17, 1980, 94 Stat. 2167; Pub. L. 96–523, § 4(a), Dec. 12, 1980, 94 Stat. 3040; Pub. L. 97–164, title II, § 207(a), Apr. 2, 1982, 96 Stat. 54; Pub. L. 97–253, title III, § 306(b), (c), Sept. 8, 1982, 96 Stat. 795, 796; Pub. L. 97–346, § 3(a), (b), Oct. 15, 1982, 96 Stat. 1647; Pub. L. 98–51, title I, § 111(2), July 14, 1983, 97 Stat. 269; Pub. L. 89–702, title II, § 209(a)–(e), as added Pub. L. 98–129, § 2, Oct. 14, 1983, 97 Stat. 843; Pub. L. 98–369, div. B, title II, § 2208(a), July 18, 1984, 98 Stat. 1060; Pub. L. 99–251, title II, § 202, Feb. 27, 1986, 100 Stat. 23; Pub. L. 99–335, title II, § 207(g), June 6, 1986, 100 Stat. 595; Pub. L. 99–556, title V, § 502(a), Oct. 27, 1986, 100 Stat. 3140; Pub. L. 99–638, § 2(b)(2), Nov. 10, 1986, 100 Stat. 3536; Pub. L. 100–204, title V, § 503, Dec. 22, 1987, 101 Stat. 1383; Pub. L. 101–530, § 1, Nov. 6, 1990, 104 Stat. 2338; Pub. L. 102–83, § 5(c)(2), Aug. 6, 1991, 105 Stat. 406; Pub. L. 102–242, title IV, § 466(a), Dec. 19, 1991, 105 Stat. 2384; Pub. L. 102–378, § 2(58), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 103–82, title III, § 371(a)(1), title IV, § 405(b), Sept. 21, 1993, 107 Stat. 909, 921; Pub. L. 103–337, div. A, title XVI, § 1677(a)(3), Oct. 5, 1994, 108 Stat. 3019; Pub. L. 104–186, title II, § 215(11), Aug. 20, 1996, 110 Stat. 1746; Pub. L. 104–201, div. A, title VI, § 637(a), Sept. 23, 1996, 110 Stat. 2580; Pub. L. 106–57, title III, § 312, Sept. 29, 1999, 113 Stat. 428; Pub. L. 106–554, § 1(a)(4) [div. A, § 901(a)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A–195; Pub. L. 107–107, div. A, title XI, § 1132(a)(1), Dec. 28, 2001, 115 Stat. 1242; Pub. L. 110–81, title IV, § 401(a), Sept. 14, 2007, 121 Stat. 754; Pub. L. 112–105, § 15(a)(1), (b), Apr. 4, 2012, 126 Stat. 301.)

5 - 4 - 7 - 2 - 3 - 3 Eligibility for annuity

(a)

An employee must complete at least 5 years of civilian service before he is eligible for an annuity under this subchapter.

(b)

An employee or Member must complete, within the last 2 years before any separation from service, except a separation because of death or disability, at least 1 year of creditable civilian service during which he is subject to this subchapter before he or his survivors are eligible for annuity under this subchapter based on the separation. If an employee or Member, except an employee or Member separated from the service because of death or disability, fails to meet the service requirement of the preceding sentence, the amounts deducted from his pay during the service for which no eligibility for annuity is established based on the separation shall be returned to him on the separation. Failure to meet this service requirement does not deprive the individual or hissurvivors of annuity rights which attached on a previous separation.

(c)

A Member or his survivor is eligible for an annuity under this subchapter only if the amounts named by section 8334 of this title have been deducted or deposited with respect to his last 5 years of civilian service, or, in the case of asurvivor annuity under section 8341(d) or (e)(1) of this title, with respect to his total service.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 569; Pub. L. 91–93, title II, § 201(b), Oct. 20, 1969, 83 Stat. 138; Pub. L. 94–183, § 2(34), Dec. 31, 1975, 89 Stat. 1058.)

5 - 4 - 7 - 2 - 3 - 4 Deductions, contributions, and deposits

(a)

(1)

(A)

The employing agency shall deduct and withhold from the basic payof an employee, Member, Congressional employee, law enforcement officer, firefighter, bankruptcy judge, judge of the United States Court of Appeals for the Armed Forces, United States magistrate,[1] Court of Federal Claims judge, member of the Capitol Police, member of the Supreme Court Police, nuclear materials courier, or customs and border protection officer, as the case may be, the percentage of basic pay applicable under subsection (c).

(B)

(i)

Except as provided in clause (ii), an equal amount shall be contributed from the appropriation or fund used to pay the employee or, in the case of an elected official, from an appropriation or fund available for payment of other salaries of the same office or establishment. When an employee in the legislative branch is paid by the Chief Administrative Officer of the House of Representatives, the Chief Administrative Officer may pay from the applicable accounts of the House of Representatives the contribution that otherwise would be contributed from the appropriation or fund used to pay theemployee.

(ii)

In the case of an employee of the United States Postal Service, no amount shall be contributed under this subparagraph.

(2)

The amounts so deducted and withheld, together with the amounts so contributed, shall be deposited in the Treasury of the United States to the credit of the Fund under such procedures as the Secretary of the Treasury may prescribe. Deposits made by an employee or Member also shall be credited to the Fund.

(b)

Each employee or Member is deemed to consent and agree to these deductions from basic pay. Notwithstanding any law or regulation affecting thepay of an employee or Member, payment less these deductions is a full and complete discharge and acquittance of all claims and demands for regularservices during the period covered by the payment, except the right to the benefits to which the employee or Member is entitled under this subchapter.

(c)

Each employee or Member credited with civilian service after July 31, 1920, for which retirement deductions or deposits have not been made, may deposit with interest an amount equal to the following percentages of his basic pay received for that service:

	Percentage of basic pay	Service period
Employee	2½	August 1, 1920, to June 30, 1926.
	3½	July 1, 1926, to June 30, 1942.
	5	July 1, 1942, to June 30, 1948.
	6	July 1, 1948, to October 31, 1956.
	6½	November 1, 1956, to December 31, 1969.
	7	January 1, 1970, to December 31, 1998.
	7.25	January 1, 1999, to December 31, 1999.
	7.4	January 1, 2000, to December 31, 2000.
	7	After December 31, 2000.
Member or employee for Congressional employee service	2½ 3½ 5 6	August 1, 1920, to June 30, 1926. July 1, 1926, to June 30, 1942. July 1, 1942, to June 30, 1948. July 1, 1948, to October 31, 1956.
	6½	November 1, 1956, to December 31, 1969.
	7.5	January 1, 1970, to December 31, 1998.
	7.75	January 1, 1999, to December 31, 1999.
	7.9	January 1, 2000, to December 31, 2000.
	7.5	After December 31, 2000.
Member for Member service	2½ 3½	August 1, 1920, to June 30, 1926. July 1, 1926, to June 30, 1942.
	5	July 1, 1942, to August 1, 1946.
	6	August 2, 1946, to October 31, 1956.
	7½	November 1, 1956, to December 31, 1969.
	8	January 1, 1970, to December 31, 1998.
	8.25	January 1, 1999, to December 31, 1999.
	8.4	January 1, 2000, to December 31, 2000.
	8.5	January 1, 2001, to December 31, 2002.
	8	After December 31, 2002.
Law enforcement officer for law enforcement service, member of the Supreme Court Police for Supreme Court Police service, and firefighter for firefighter service	2½ 3½ 5 6 6½ 7	August 1, 1920, to June 30, 1926. July 1, 1926, to June 30, 1942. July 1, 1942, to June 30, 1948. July 1, 1948, to October 31, 1956. November 1, 1956, to December 31, 1969. January 1, 1970, to December 31, 1974.
	7.5	January 1, 1975, to December 31, 1998.
	7.75	January 1, 1999, to December 31, 1999.
	7.9	January 1, 2000, to December 31, 2000.
	7.5	After December 31, 2000.
Bankruptcy judge	2½ 3½	August 1, 1920, to June 30, 1926. July 3, 1926, to June 30, 1942.
	5	July 1, 1942, to June 30, 1948.
	6	July 1, 1948, to October 31, 1956.
	6½	November 1, 1956, to December 31, 1969.
	7	January 1, 1970, to December 31, 1983.
	8	January 1, 1984, to December 31, 1998.
	8.25	January 1, 1999, to December 31, 1999.
	8.4	January 1, 2000, to December 31, 2000.
	8	After December 31, 2000.
Judge of the United States Court of Appeals for the Armed Forces forservice as a judge of that court	6 6½ 7	May 5, 1950, to October 31, 1956. November 1, 1956, to December 31, 1969. January 1, 1970, to (but not including) the date of the enactment of the Department of Defense Authorization Act, 1984.
	8	The date of enactment of the Department of Defense Authorization Act, 1984, to December 31, 1998.
	8.25	January 1, 1999, to December 31, 1999.
	8.4	January 1, 2000, to December 31, 2000.
	8	After December 31, 2000.
United States magistrate judge	2½ 3½	August 1, 1920, to June 30, 1926. July 1, 1926, to June 30, 1942.
	5	July 1, 1942, to June 30, 1948.
	6	July 1, 1948, to October 31, 1956.
	6½	November 1, 1956, to December 31, 1969.
	7	January 1, 1970, to September 30, 1987.
	8	October 1, 1987, to December 31, 1998.
	8.25	January 1, 1999, to December 31, 1999.
	8.4	January 1, 2000, to December 31, 2000.
	8	After December 31, 2000.
Court of Federal Claims Judge	2½ 3½	August 1, 1920, to June 30, 1926. July 1, 1926, to June 30, 1942.
	5	July 1, 1942, to June 30, 1948.
	6	July 1, 1948, to October 31, 1956.
	6½	November 1, 1956, to December 31, 1969.
	7	January 1, 1970, to September 30, 1988.
	8	October 1, 1988, to December 31, 1998.
	8.25	January 1, 1999, to December 31, 1999.
	8.4	January 1, 2000, to December 31, 2000.
	8	After December 31, 2000.
Member of the Capitol Police	2.5 3.5	August 1, 1920, to June 30, 1926. July 1, 1926, to June 30, 1942.
	5	July 1, 1942, to June 30, 1948.
	6	July 1, 1948, to October 31, 1956.
	6.5	November 1, 1956, to December 31, 1969.
	7.5	January 1, 1970, to December 31, 1998.
	7.75	January 1, 1999, to December 31, 1999.
	7.9	January 1, 2000, to December 31, 2000.
	7.5	After December 31, 2000.
Nuclear materials courier	7	October 1, 1977 to October 16, 1998.
	7.5	October 17, 1998to December 31, 1998.
	7.75	January 1, 1999 to December 31, 1999.
	7.9	January 1, 2000 to December 31, 2000.
	7.5	After December 31, 2000.
Customs and border protection officer	7.5	After June 29, 2008.

Notwithstanding the preceding provisions of this subsection and any provision of section 206(b)(3) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983, the percentage of basic pay required under this subsection in the case of an individual described in section 8402(b)(2) shall, with respect to any covered service (as defined by section 203(a)(3) of such Act) performed by such individual after December 31, 1983, and before January 1, 1987, be equal to 1.3 percent, and, with respect to any such service performed after December 31, 1986, be equal to the amount that would have been deducted from the employee’s basic pay under subsection (k) of this section if the employee’s pay had been subject to that subsection during such period.

(d)

(1)

Each employee or Member who has received a refund of retirement deductions under this or any other retirement system established for employees of the Government covering service for which he may be allowed credit under this subchapter may deposit the amount received, with interest. Credit may not be allowed for the service covered by the refund until the deposit is made.

(2)

(A)This paragraph applies with respect to any employee or Member who—

(i)

separates before March 1, 1991, and receives (or elects, in accordance with applicable provisions of this subchapter, to receive) a refund (described in paragraph (1)) which relates to a period ofservice ending before March 1, 1991;

(ii)

is entitled to an annuity under this subchapter (other than a disability annuity) which is based on service of such employee orMember, and which commences on or after December 2, 1990; and

(iii)

does not make the deposit (described in paragraph (1)) required in order to receive credit for the period of service with respect to which the refund relates.

(B)

Notwithstanding the second sentence of paragraph (1), the annuity to which an employee or Member under this paragraph is entitled shall (subject to adjustment under section 8340) be equal to an amount which, when taken together with the unpaid amount referred to in subparagraph (A)(iii), would result in the present value of the total being actuarially equivalent to the present value of the annuity which would otherwise be provided the employee or Member under this subchapter, as computed under subsections (a)–(i) and (n) of section 8339 (treating, for purposes of so computing the annuity which would otherwise be provided under this subchapter, the deposit referred to in subparagraph (A)(iii) as if it had been timely made).

(C)

The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out this paragraph.

(e)

(1)

Interest under subsection (c), (d)(1), (j), (k), or (l) of this section is computed in accordance with paragraphs (2) and (3) of this subsection and regulations prescribed by the Office of Personnel Management.

(2)

Interest accrues annually on the outstanding portion of any amount that may be deposited under subsection (c), (d)(1), (j), (k), or (l) of this section, and is compounded annually, until the portion is deposited. Such interest is computed from the mid-point of each service period included in the computation, or from the date refund was paid. The deposit may be made in one or more installments. Interest may not be charged for a period of separation from the service which began before October 1, 1956.

(3)

The rate of interest is 4 percent a year through December 31, 1947, and 3 percent a year beginning January 1, 1948, through December 31, 1984. Thereafter, the rate of interest for any calendar year shall be equal to the overall average yield to the Fund during the preceding fiscal year from all obligations purchased by the Secretary of the Treasury during such fiscal year under section 8348(c), (d), and (e) of this title, as determined by the Secretary.

(f)

Under such regulations as the Office of Personnel Management may prescribe, amounts deducted under subsection (a) or (k) of this section and deposited under subsections (c) and (d)(1) of this section shall be entered on individual retirement records.

(g)Deposit may not be required for—

(1)

service before August 1, 1920;

(2)

military service, except to the extent provided under section 8332(c) or section 8334(j) of this title;

(3)

service for the Panama Railroad Company before January 1, 1924;

(4)

service performed before October 29, 1983,,[2] by natives of the Pribilof Islands in the taking and curing of fur seal skins and other activities in connection with the administration of the Pribilof Islands except where deductions, contributions, and deposits were made before October 29, 1983;

(5)

days of unused sick leave credited under section 8339(m) of this title; or

(6)

any period for which credit is allowed under section 8332(l) of this title.

(h)

For the purpose of survivor annuities, deposits authorized by subsections (c), (d)(1), (j), and (k) of this section may also be made by a survivor of an employeeor Member.

(i)

(1)

The Director of the Administrative Office of the United States Courts shallpay to the Fund the amount which an employee may deposit under subsection (c) of this section for service creditable under section 8332(b)(12) of this title if such creditable service immediately precedes service as anemployee subject to this subchapter with a break in service of no more than ninety working days. The Director shall pay such amount from any appropriation available to him as a necessary expense of the appropriation concerned.

(2)

The amount the Director pays in accordance with paragraph (1) of this subsection shall be reduced by the amount of any refund to the employeeunder section 376 of title 28. Except to the extent of such reduction, the amount the Director pays to the Fund shall satisfy the deposit requirement of subsection (c) of this section.

(3)

Notwithstanding any other provision of law, the amount the Director pays under this subsection shall constitute an employer contribution to theFund, excludable under section 402 of the Internal Revenue Code of 1986from the employee’s gross income until such time as the contribution is distributed or made available to the employee, and shall not be subject to refund or to lump-sum payment to the employee.

(4)

Notwithstanding any other provision of law, a bankruptcy judge ormagistrate judge who is covered by section 377 of title 28 or section 2(c) of the Retirement and Survivors’ Annuities for Bankruptcy Judges and Magistrates Act of 1988 shall not be subject to deductions and contributions to the Fund, if the judge or magistrate judge notifies the Director of the Administrative Office of the United States Courts of an election of a retirement annuity under those provisions. Upon such an election, the judge or magistrate judge shall be entitled to a lump-sum credit under section 8342(a) of this title.

(5)

Notwithstanding any other provision of law, a judge who is covered by section 7296 of title 38 shall not be subject to deductions and contributions to the Fund, if the judge notifies the Director of the Office of Personnel Management of an election of a retirement annuity under that section. Upon such an election, the judge shall be entitled to a lump-sum credit under section 8342(a) of this title.

(6)

Notwithstanding any other provision of law, a judge of the United States Court of Federal Claims who is covered by section 178 of title 28 shall not be subject to deductions and contributions to the Fund if the judge notifies theDirector of the Administrative Office of the United States Courts of an election of a retirement annuity under those provisions. Upon such an election, the judge shall be entitled to a lump-sum credit under section 8342(a) of this title.

(j)

(1)

(A)

Except as provided in subparagraph (B), and subject to paragraph (5), each employee or Member who has performed military service before the date of the separation on which the entitlement to any annuity under this subchapter is based may pay, in accordance with such regulations as the Office shall issue, to the agency by which theemployee is employed, or, in the case of a Member or a Congressionalemployee, to the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives, as appropriate, an amount equal to 7 percent of the amount of the basic pay paid under section 204 of title 37 to the employee or Member for each period of military service after December 1956. The amount of such payments shall be based on such evidence of basic pay for military service as the employee orMember may provide, or if the Office determines sufficient evidence has not been so provided to adequately determine basic pay for military service, such payment shall be based upon estimates of such basic pay provided to the Office under paragraph (4).

(B)

In any case where military service interrupts creditable civilian service under this subchapter and reemployment pursuant to chapter 43 of title 38 occurs on or after August 1, 1990, the deposit payable under this paragraph may not exceed the amount that would have been deducted and withheld under subsection (a)(1) from basic pay during civilianservice if the employee had not performed the period of military service.

(2)Any deposit made under paragraph (1) of this subsection more than two years after the later of—

(A)

October 1, 1983; or

(B)

the date on which the employee or Member making the deposit first becomes an employee or Member following the period of military servicefor which such deposit is due,

shall include interest on such amount computed and compounded annually beginning on the date of the expiration of the two-year period. The interest rate that is applicable in computing interest in any year under this paragraph shall be equal to the interest rate that is applicable for such year under subsection (e) of this section.

(3)

Any payment received by an agency, the Secretary of the Senate, or the Chief Administrative Officer of the House of Representatives under this subsection shall be immediately remitted to the Office for deposit in the Treasury of the United States to the credit of the Fund.

(4)

The Secretary of Defense, the Secretary of Transportation, the Secretary of Commerce, or the Secretary of Health and Human Services, as appropriate, shall furnish such information to the Office as the Office may determine to be necessary for the administration of this subsection.

(5)

Effective with respect to any period of military service after December 31, 1998, the percentage of basic pay under section 204 of title 37 payable under paragraph (1) shall be equal to the same percentage as would be applicable under subsection (c) of this section for that same period forservice as an employee, subject to paragraph (1)(B).

(6)

(A)

In calculating and processing the deposit under paragraph (1) with respect to an employee, Member, or annuitant, if the employing agency of such employee, Member, or annuitant makes an administrative error, such employing agency may pay, on behalf of the employee, Member, or annuitant, any additional interest assessed due to the administrative error.

(B)

For purposes of subparagraph (A), the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives, as appropriate, shall be considered the employing agency of a Member or Congressional employee.

(C)

The Director of the Office of Personnel Management shall issue such regulations as are necessary to carry out this paragraph.

(k)

(1)Effective with respect to pay periods beginning after December 31, 1986, in administering this section in the case of an individual described in section 8402(b)(2) of this title—

(A)

the amount to be deducted and withheld by the employing agency shall be determined in accordance with paragraph (2) of this subsection instead of subsection (a)(1)(A); and

(B)

the amount of the contribution under subparagraph (B) of subsection (a)(1) shall be the amount which would have been contributed under such subparagraph if this subsection had not been enacted.

(2)

(A)With respect to Federal wages of an employee or Member (or that portion thereof) not exceeding the contribution and benefit base during the calendar year involved, the appropriate amount to be deducted and withheld under this subsection is the amount by which—

(i)

the total deduction for those wages (or for that portion) exceeds;

(ii)

the OASDI contribution with respect to those wages (or that portion).

(B)

With respect to any portion of Federal wages of an employee orMember which exceed the contribution and benefit base during the calendar year involved, the appropriate amount to be deducted and withheld under this subsection is an amount equal to the total deduction for that portion.

(C)For purposes of this paragraph—

(i)

the term “Federal wages” means basic pay for service as anemployee or Member, as the case may be;

(ii)

the term “contribution and benefit base” means the contribution and benefit base in effect with respect to the period involved, as determined under section 230 of the Social Security Act;

(iii)

the term “total deduction”, as used with respect to any Federal wages (or portion thereof), means an amount equal to the amount of those wages (or of that portion), multiplied by the percentage which (but for this subsection) would apply under subsection (a)(1)(A) with respect to the individual involved; and

(iv)

the term “OASDI contribution”, with respect to any income, means the amount of tax which may be imposed under section 3101(a) of the Internal Revenue Code of 1986 with respect to such income (determined without regard to any income which is not a part of Federal wages).

(3)

The amount of a deposit under subsection (c) of this section for any service with respect to which paragraph (1) of this subsection applies shall be equal to an amount determined based on the preceding provisions of this subsection, and shall include interest.

(4)In administering paragraphs (1) through (3)—

(A)the term “an individual described in section 8402(b)(2) of this title” shall be considered to include any individual—

(i)

who is subject to this subchapter as a result of a provision of law described in section 8347(o), and

(ii)

whose employment (as described in section 8347(o)) is also employment for purposes of title II of the Social Security Act and chapter 21 of the Internal Revenue Code of 1986; and

(B)

the term “Federal wages”, as applied with respect to any individual to whom this subsection applies as a result of subparagraph (A), meansbasic pay for any employment referred to in subparagraph (A)(ii).

(l)

(1)

Each employee or Member who has performed service as a volunteer or volunteer leader under part A of title VIII of the Economic Opportunity Act of 1964, as a full-time volunteer enrolled in a program of at least 1 year’s duration under part A, B,[3] or C of title I of the Domestic Volunteer Service Act of 1973, or as a volunteer or volunteer leader under the Peace Corps Actbefore the date of the separation on which the entitlement to any annuity under this subchapter is based may pay, in accordance with such regulations as the Office of Personnel Management shall issue, an amount equal to 7 percent of the readjustment allowance paid to the employee or Member under title VIII of the Economic Opportunity Act of 1964 or section 5(c) or 6(1) of the Peace Corps Act or the stipend paid to the employee or Member under part A, B,[3] or C of title I of the Domestic Volunteer Service Act of 1973, for each period of service as such a volunteer or volunteer leader. This paragraph shall be subject to paragraph (4).

(2)Any deposit made under paragraph (1) more than 2 years after the later of—

(A)

October 1, 1993; or

(B)

the date on which the employee or Member making the deposit first becomes an employee or Member,

shall include interest on such amount computed and compounded annually beginning on the date of the expiration of the 2-year period. The interest rate that is applicable in computing interest in any year under this paragraph shall be equal to the interest rate that is applicable for such year under subsection (e).

(3)

The Director of the Peace Corps and the Chief Executive Officer of the Corporation for National and Community Service shall furnish such information to the Office of Personnel Management as the Office may determine to be necessary for the administration of this subsection.

(4)

Effective with respect to any period of service after December 31, 1998, the percentage of the readjustment allowance or stipend (as the case may be) payable under paragraph (1) shall be equal to the same percentage as would be applicable under subsection (c) of this section for the same period for service as an employee.

(5)

(A)

In calculating and processing the deposit under paragraph (1) with respect to an employee, Member, or annuitant, if an employing agency of such employee, Member, or annuitant makes an administrative error that causes additional interest assessed to accrue on the deposit, the employing agency may pay, on behalf of the employee, Member, or annuitant, any additional interest assessed due to the administrative error.

(B)

In calculating and processing the deposit under paragraph (1) with respect to an employee, Member, or annuitant, if the Office of Personnel Management makes an administrative error that causes additional interest assessed to accrue on the deposit, the Office of Personnel Management may pay, on behalf of the employee, Member, orannuitant, any additional interest assessed due to the administrative error.

(C)

(D)

The Director of the Office of Personnel Management shall issue such regulations as are necessary to carry out this paragraph.

(m)

A Member who has served in a position in the executive branch for which the rate of basic pay was reduced for the duration of the service of the Member to remove the impediment to the appointment of the Member imposed by article I, section 6, clause 2 of the Constitution, or the survivor of such a Member,may deposit to the credit of the Fund an amount equal to the difference between the amount deducted from the basic pay of the Member during that period of service and the amount that would have been deducted if the rate of basic pay which would otherwise have been in effect during that period had been in effect, plus interest computed under subsection (e).

(n)

Notwithstanding subsection (c), no deposit may be made with respect to service credited under section 8332(b)(17).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 569; Pub. L. 90–83, § 1(74), Sept. 11, 1967, 81 Stat. 214; Pub. L. 90–486, § 5(b), Aug. 13, 1968, 82 Stat. 757; Pub. L. 91–93, title I, § 102(a), title II, § 202, Oct. 20, 1969, 83 Stat. 136, 138; Pub. L. 92–297, § 7(2), May 16, 1972, 86 Stat. 144; Pub. L. 93–350, § 3, July 12, 1974, 88 Stat. 356; Pub. L. 94–126, §§ 1(a), 2(a), Nov. 12, 1975, 89 Stat. 679; Pub. L. 95–382, § 1(b), Sept. 22, 1978, 92 Stat. 727; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–598, title III, § 338(b), Nov. 6, 1978, 92 Stat. 2681; Pub. L. 97–164, title II, § 207(b), Apr. 2, 1982, 96 Stat. 54; Pub. L. 97–253, title III, §§ 303(a)(1), 306(d), (e), Sept. 8, 1982, 96 Stat. 793, 796, 797; Pub. L. 97–346, § 3(a), (c)–(e)(1), Oct. 15, 1982, 96 Stat. 1647, 1648; Pub. L. 98–94, title XII, §§ 1256(a), 1257, Sept. 24, 1983, 97 Stat. 701, 702; Pub. L. 89–702, title II, § 209(f), as added Pub. L. 98–129, § 2, Oct. 14, 1983, 97 Stat. 843; Pub. L. 98–353, title I, § 116(b), July 10, 1984, 98 Stat. 344; Pub. L. 98–615, § 2(2), Nov. 8, 1984, 98 Stat. 3195; Pub. L. 99–335, title II, § 201(a), (c), June 6, 1986, 100 Stat. 588, 591; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–53, § 2(b), June 18, 1987, 101 Stat. 367; Pub. L. 100–238, title I, §§ 102, 108(b)(1), Jan. 8, 1988, 101 Stat. 1744, 1748; Pub. L. 100–659, § 6(b), Nov. 15, 1988, 102 Stat. 3919; Pub. L. 101–94, title I, § 102(a), Aug. 16, 1989, 103 Stat. 626; Pub. L. 101–508, title VII, § 7001(b)(1), (2)(A), (B), Nov. 5, 1990, 104 Stat. 1388–328, 1388–329; Pub. L. 101–650, title III, §§ 306(c)(2), (e)(2), 321, Dec. 1, 1990, 104 Stat. 5110, 5112, 5117; Pub. L. 102–40, title IV, § 402(d)(2), May 7, 1991, 105 Stat. 239; Pub. L. 102–378, § 2(59), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 102–572, title IX, § 902(b), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 103–66, title XI, § 11004(a)(3), Aug. 10, 1993, 107 Stat. 412; Pub. L. 103–82, title III, § 371(a)(2), Sept. 21, 1993, 107 Stat. 910; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832; Pub. L. 103–353, § 5(b), Oct. 13, 1994, 108 Stat. 3173; Pub. L. 104–186, title II, § 215(12), Aug. 20, 1996, 110 Stat. 1746; Pub. L. 104–316, title I, § 103(g), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 105–33, title VII, § 7001(a)(3), (4), Aug. 5, 1997, 111 Stat. 653, 657; Pub. L. 105–61, title V, § 516(a)(1), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 105–261, div. C, title XXXI, § 3154(c)(1), (2), Oct. 17, 1998, 112 Stat. 2254; Pub. L. 106–65, div. A, title X, § 1066(d)(3), Oct. 5, 1999, 113 Stat. 773; Pub. L. 106–346, § 101(a) [title V, § 505(a)], Oct. 23, 2000, 114 Stat. 1356, 1356A–50; Pub. L. 106–553, § 1(a)(2) [title III, § 308(b)(1)], Dec. 21, 2000, 114 Stat. 2762, 2762A–86; Pub. L. 107–107, div. A, title XI, § 1132(a)(2), Dec. 28, 2001, 115 Stat. 1243; Pub. L. 108–18, § 2(b), Apr. 23, 2003, 117 Stat. 624; Pub. L. 109–435, title VIII, § 802(a)(1), Dec. 20, 2006, 120 Stat. 3249; Pub. L. 110–161, div. E, title V, § 535(a)(2), Dec. 26, 2007, 121 Stat. 2075; Pub. L. 111–84, div. A, title XIX, § 1902(a), Oct. 28, 2009, 123 Stat. 2615; Pub. L. 115–352, §§ 2(a), 3(a), Dec. 21, 2018, 132 Stat. 5067, 5068.)

5 - 4 - 7 - 2 - 3 - 5 Mandatory separation

(a)

An air traffic controller shall be separated from the service on the last day of the month in which he becomes 56 years of age or completes the age andservice requirements for an annuity under section 8336(e), whichever occurs later. The Secretary, under such regulations as he may prescribe, may exempt acontroller having exceptional skills and experience as a controller from the automatic separation provisions of this subsection until that controller becomes 61 years of age. The Secretary shall notify the controller in writing of the date of separation at least 60 days before that date. Action to separate the controller is not effective, without the consent of the controller, until the last day of the month in which the 60-day notice expires. For purposes of this subsection, the term “air traffic controller” or “controller” has the meaning given to it under section 8331(29)(A).[1]

(b)

(1)

A law enforcement officer, firefighter, nuclear materials courier, or customs and border protection officer who is otherwise eligible for immediate retirement under section 8336(c) shall be separated from theservice on the last day of the month in which that officer, firefighter, or courier, as the case may be, becomes 57 years of age or completes 20 years of service if then over that age. The head of the agency, when in his judgment the public interest so requires, may exempt such an employee from automatic separation under this subsection until that employee becomes 60 years of age. The employing office shall notify the employee in writing of the date of separation at least 60 days in advance thereof. Action to separate the employee is not effective, without the consent of theemployee, until the last day of the month in which the 60-day notice expires.

(2)

In the case of employees of the Federal Bureau of Investigation, the second sentence of paragraph (1) shall be applied by substituting “65 years of age” for “60 years of age”. The authority to grant exemptions in accordance with the preceding sentence shall cease to be available after December 31, 2011.

(c)

A member of the Capitol Police who is otherwise eligible for immediate retirement under section 8336(m) shall be separated from the service on the last day of the month in which such member becomes 57 years of age or completes 20 years of service if then over that age. The Capitol Police Board, when in its judgment the public interest so requires, may exempt such a member from automatic separation under this subsection until that member becomes 60 years of age. The Board shall notify the member in writing of the date of separation at least 60 days in advance thereof. Action to separate the member is not effective, without the consent of the member, until the last day of the month in which the 60-day notice expires.

(d)

A member of the Supreme Court Police who is otherwise eligible for immediate retirement under section 8336(n) shall be separated from the serviceon the last day of the month in which such member becomes 57 years of age or completes 20 years of service if then over that age. The Marshal of the Supreme Court of the United States, when in his judgment the public interest so requires, may exempt such a member from automatic separation under this subsection until that member becomes 60 years of age. The Marshal shall notify themember in writing of the date of separation at least 60 days in advance thereof. Action to separate the member is not effective, without the consent of themember, until the last day of the month in which the 60-day notice expires.

(f)

 [2] The President, by Executive order, may exempt an employee (other than amember of the Capitol Police or the Supreme Court Police) from automatic separation under this section when he determines the public interest so requires.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 571; Pub. L. 92–297, § 4, May 16, 1972, 86 Stat. 144; Pub. L. 93–350, § 4, July 12, 1974, 88 Stat. 356; Pub. L. 95–256, § 5(c), Apr. 6, 1978, 92 Stat. 191; Pub. L. 96–70, title III, § 3302(e)(3), Sept. 27, 1979, 93 Stat. 498; Pub. L. 96–347, § 1(b), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 101–428, § 2(b)(1)(A), (2), Oct. 15, 1990, 104 Stat. 928; Pub. L. 101–509, title V, § 529 [title IV, § 409(a)], Nov. 5, 1990, 104 Stat. 1427, 1468; Pub. L. 102–378, § 2(60), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 103–283, title III, § 307(a), July 22, 1994, 108 Stat. 1441; Pub. L. 105–261, div. C, title XXXI, § 3154(d), Oct. 17, 1998, 112 Stat. 2255; Pub. L. 106–553, § 1(a)(2) [title III, § 308(b)(2)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 141(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–235; Pub. L. 107–27, § 2(a), Aug. 20, 2001, 115 Stat. 207; Pub. L. 107–67, title VI, § 640(a), Nov. 12, 2001, 115 Stat. 554; Pub. L. 108–7, div. J, title VI, § 648(a), Feb. 20, 2003, 117 Stat. 474; Pub. L. 108–176, title II, § 226(a)(3)(A), Dec. 12, 2003, 117 Stat. 2529; Pub. L. 108–447, div. B, title I, § 112(a), Dec. 8, 2004, 118 Stat. 2868; Pub. L. 108–458, title II, § 2005(a), Dec. 17, 2004, 118 Stat. 3704; Pub. L. 110–161, div. E, title V, § 535(a)(3), Dec. 26, 2007, 121 Stat. 2075; Pub. L. 111–259, title IV, § 444(a), Oct. 7, 2010, 124 Stat. 2733.)

5 - 4 - 7 - 2 - 3 - 6 Immediate retirement

(a)

An employee who is separated from the service after becoming 55 years of age and completing 30 years of service is entitled to an annuity.

(b)

An employee who is separated from the service after becoming 60 years of age and completing 20 years of service is entitled to an annuity.

(c)

(1)

An employee who is separated from the service after becoming 50 years of age and completing 20 years of service as a law enforcement officer, firefighter, nuclear materials courier, or customs and border protection officer, or any combination of such service totaling at least 20 years, is entitled to an annuity.

(2)An employee is entitled to an annuity if the employee—

(A)

was a law enforcement officer or firefighter employed by the Panama Canal Company or the Canal Zone Government at any time during the period beginning March 31, 1979, and ending September 30, 1979; and

(B)

is separated from the service before January 1, 2000, after becoming 48 years of age and completing 18 years of service as a law enforcement officer or firefighter, or any combination of such service totaling at least 18 years.

(3)

(A)In this paragraph—

(i)the term “affected individual” means an individual covered under this subchapter who—

(I)

is performing service in a covered position;

(II)

while on duty, becomes ill or is injured as a direct result of the performance of such duties before the date on which the individual becomes entitled to an annuity under paragraph (1) of this subsection or subsection (e), (m), or (n), as applicable;

(III)

because of the illness or injury described in subclause (II), is permanently unable to render useful and efficient service in the employee’s covered position, as determined by the agency in which the individual was serving when such individual incurred the illness or injury; and

(IV)is appointed to a position in the civil service that—

(aa)

is not a covered position; and

(bb)

is within an agency that regularly appoints individuals to supervisory or administrative positions related to the activities of the former covered position of the individual;

(ii)

the term “covered position” means a position as a law enforcement officer, customs and border protection officer,firefighter, air traffic controller, nuclear materials courier, member of the Capitol Police, or member of the Supreme Court Police.

(B)

Unless an affected individual files an election described in subparagraph (E), creditable service by the affected individual in a position described in subparagraph (A)(i)(IV) shall be treated as creditable service in a covered position for purposes of this chapter and determining the amount to be deducted and withheld from the pay of the affected individual under section 8334.

(C)

Subparagraph (B) shall only apply if the affected employee transitions to a position described in subparagraph (A)(i)(IV) without a break inservice exceeding 3 days.

(D)The service of an affected individual shall no longer be eligible for treatment under subparagraph (B) if such service occurs after the individual—

(i)

is transferred to a supervisory or administrative position related to the activities of the former covered position of the individual; or

(ii)

meets the age and service requirements that would subject the individual to mandatory separation under section 8335 if such individual had remained in the former covered position.

(E)

In accordance with procedures established by the Director of the Office of Personnel Management, an affected individual may file an election to have any creditable service performed by the affected individual treated in accordance with this chapter without regard to subparagraph (B).

(F)

Nothing in this paragraph shall be construed to apply to such affected individual any other pay-related laws or regulations applicable to a covered position.

(d)An employee who—

(1)

is separated from the service involuntarily, except by removal for cause on charges of misconduct or delinquency; or

(2)

(A)

has been employed continuously, by the agency in which the employee is serving, for at least the 31-day period ending on the date on which such agency requests the determination referred to in subparagraph (D);

(B)

is serving under an appointment that is not time limited;

(C)

has not been duly notified that such employee is to be involuntarily separated for misconduct or unacceptable performance;

(D)is separated from the service voluntarily during a period in which, as determined by the office [1] of Personnel Management (upon request of the agency) under regulations prescribed by the Office—

(i)

such agency (or, if applicable, the component in which the employee is serving) is undergoing substantial delayering, substantial reorganization, substantial reductions in force, substantial transfer of function, or other substantial workforce restructuring (or shaping);

(ii)

a significant percentage of employees servicing [2] in such agency (or component) are likely to be separated or subject to an immediate reduction in the rate of basic pay (without regard to subchapter VI of chapter 53, or comparable provisions); or

(iii)

identified as being in positions which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively; and

(E)as determined by the agency under regulations prescribed by the Office, is within the scope of the offer of voluntary early retirement, which may be made on the basis of—

(i)

1 or more organizational units;

(ii)

1 or more occupational series or levels;

(iii)

1 or more geographical locations;

(iv)

specific periods;

(v)

skills, knowledge, or other factors related to a position; or

(vi)

any appropriate combination of such factors;

after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity. For purposes of paragraph (1) of this subsection, separation for failure to accept a directed reassignment to a position outside the commuting area of the employeeconcerned or to accompany a position outside of such area pursuant to a transfer of function shall not be considered to be a removal for cause on charges of misconduct or delinquency. Notwithstanding the first sentence of this subsection, an employee described in paragraph (1) of this subsection is not entitled to an annuity under this subsection if the employee has declined a reasonable offer of another position in the employee’s agency for which the employee is qualified, which is not lower than 2 grades (or pay levels) below the employee’s grade (or pay level), and which is within the employee’s commuting area.

(e)

An employee who is voluntarily or involuntarily separated from the service,except by removal for cause on charges of misconduct or delinquency, after completing 25 years of service as an air traffic controller or after becoming 50 years of age and completing 20 years of service as an air traffic controller, is entitled to an annuity.

(f)

An employee who is separated from the service after becoming 62 years of age and completing 5 years of service is entitled to an annuity.

(g)

A Member who is separated from the service after becoming 62 years of age and completing 5 years of civilian service or after becoming 60 years of age and completing 10 years of Member service is entitled to an annuity. A Member who is separated from the service after becoming 55 years of age (but before becoming 60 years of age) and completing 30 years of service is entitled to a reduced annuity. A Member who is separated from the service, except by resignation or expulsion, after completing 25 years of service or after becoming 50 years of age and (1) completing 20 years of service or (2) serving in 9 Congresses is entitled to an annuity.

(h)

(1)

A member of the Senior Executive Service who is removed from the Senior Executive Service for less than fully successful executive performance (as determined under subchapter II of chapter 43 of this title) after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity.

(2)

A member of the Defense Intelligence Senior Executive Service or the Senior Cryptologic Executive Service who is removed from such service for failure to be recertified as a senior executive or for less than fully successful executive performance after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity.

(3)

A member of the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service who is removed from such service for failure to be recertified as a senior executive or for less than fully successful executive performance after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity.

(i)

(1)An employee of the Panama Canal Commission or of an Executive agencyconducting operations in the Canal Zone or Republic of Panama who is separated from the service before January 1, 2000, who was employed by the Canal Zone Government or the Panama Canal Company at any time during the period beginning March 31, 1979, and ending September 30, 1979, and who has had continuous Panama Canal service, without a break inservice of more than 3 days, from that time until separation, is entitled to an annuity if the employee is separated—

(A)

involuntarily, after completing 20 years of service or after becoming 48 years of age and completing 18 years of service, if the separation is a result of the implementation of any provision of the Panama Canal Treaty of 1977 and related agreements; or

(B)

voluntarily, after completing 23 years of service or after becoming 48 years of age and completing 18 years of service.

(2)An employee of the Panama Canal Commission or of an Executive agencyconducting operations in the Canal Zone or Republic of Panama who is separated from the service before January 1, 2000, who was employed, at a permanent duty station in the Canal Zone, by any Executive agency other than the Canal Zone Government or the Panama Canal Company at any time during the period beginning March 31, 1979, and ending September 30, 1979, and who has had continuous Panama Canal service, without a break inservice of more than 3 days, from that time until separation, is entitled to an annuity if—

(A)

the employee is separated involuntarily, after completing 20 years ofservice or after becoming 48 years of age and completing 18 years ofservice; and

(B)

the separation is the result of the implementation of any provision of the Panama Canal Treaty of 1977 and related agreements.

(3)An employee of the Panama Canal Commission employed by that body after September 30, 1979, who is separated from the Panama Canal Commission before January 1, 2000, and who at the time of separation has a minimum of 11 years of continuous employment with the Commission (disregarding any break in service of 3 days or less) is entitled to an annuity if the employee is separated—

(A)

(B)

voluntarily, after completing 23 years of service or after becoming 48 years of age and completing 18 years of service.

(4)For the purpose of this subsection—

(A)“Panama Canal service” means—

(i)

service as an employee of the Canal Zone Government, the Panama Canal Company, or the Panama Canal Commission; or

(ii)

service at a permanent duty station in the Canal Zone or Republic of Panama as an employee of an Executive agency conducting operations in the Canal Zone or the Republic of Panama; and

(B)

“Executive agency” includes the United States District Court for the District of the Canal Zone and the Smithsonian Institution.

(j)

(1)Except as provided in paragraph (3), an employee is entitled to an annuity if he—

(A)

(i)

is separated from the service after completing 25 years of serviceor after becoming 50 years of age and completing 20 years of service, or

(ii)

is involuntarily separated, except by removal for cause on charges of misconduct or delinquency, during the 2-year period before the date on which he would meet the years of service and age requirements under clause (i),

(B)

was employed in the Bureau of Indian Affairs, the Indian Health Service, a tribal organization (to the extent provided in paragraph (2)), or any combination thereof, continuously from December 21, 1972, to the date of his separation, and

(C)

is not entitled to preference under the Indian preference laws.

(2)Employment in a tribal organization may be considered for purposes of paragraph (1)(B) of this subsection only if—

(A)

the employee was employed by the tribal organization after January 4, 1975, and immediately before such employment he was an employee of the Bureau of Indian Affairs or the Indian Health Service, and

(B)

at the time of such employment such employee and the tribal organization were eligible to elect, and elected, to have the employeeretain the coverage, rights, and benefits of this chapter under section 105(e)(2) of the Indian Self-Determination Act (25 U.S.C. 450i(a)(2); [3] 88 Stat. 2209).

(3)

(A)The provisions of paragraph (1) of this subsection shall not apply with respect to any separation of any employee which occurs after the date 10 years after—

(i)

the date the employee first meets the years of service and age requirements of paragraph (1)(A)(i), or

(ii)

the date of the enactment of this paragraph, if the employee met those requirements before that date.

(B)For purposes of applying this paragraph with respect to any employee of the Bureau of Indian Affairs in the Department of the Interior or of the Indian Health Service in the Department of Health, Education, and Welfare, the Secretary of the department involved may postpone the date otherwise applicable under subparagraph (A) if—

(i)

such employee consents to such postponement, and

(ii)

the Secretary finds that such postponement is necessary for the continued effective operation of the agency.

The period of any postponement under this subparagraph shall not exceed 12 months and the total period of all postponements with respect to any employee shall not exceed 5 years.

(4)For the purpose of this subsection—

(A)

“Bureau of Indian Affairs” means (i) the Bureau of Indian Affairs and (ii) all other organizational units in the Department of the Interior directly and primarily related to providing services to Indians and in which positions are filled in accordance with the Indian preference laws.

(B)

“Indian preference laws” means section 12 of the Act of June 18, 1934 (25 U.S.C. 472; 48 Stat. 986),3 or any other provision of law granting a preference to Indians in promotions or other Federal personnel actions.

(k)

A bankruptcy judge, United States magistrate judge, or Court of Federal Claims judge who is separated from service, except by removal, after becoming 62 years of age and completing 5 years of civilian service, or after becoming 60 years of age and completing 10 years of service as a bankruptcy judge, United States magistrate judge, or Court of Federal Claims judge, is entitled to an annuity.

(l)

A judge of the United States Court of Appeals for the Armed Forces who is separated from the service after becoming 62 years of age and completing 5 years of civilian service or after completing the term of service for which he was appointed as a judge of such court is entitled to an annuity. A judge who is separated from the service before becoming 60 years of age is entitled to a reduced annuity.

(m)

A member of the Capitol Police who is separated from the service after becoming 50 years of age and completing 20 years of service as a member of the Capitol Police as a law enforcement officer, or as a customs and border protection officer, or any combination of such service totaling at least 20 years, is entitled to an annuity.

(n)

A member of the Supreme Court Police who is separated from the serviceafter becoming 50 years of age and completing 20 years of service as a member of the Supreme Court Police as a law enforcement officer, or as a customs and border protection officer, or any combination of such service totaling at least 20 years, is entitled to an annuity.

(o)

An annuity or reduced annuity authorized by this section is computed under section 8339 of this title.

(p)

(1)The Secretary of Defense may, during fiscal years 2002 and 2003, carry out a program under which an employee of the Department of Defense may be separated from the service entitled to an immediate annuity under this subchapter if the employee—

(A)has—

(i)

completed 25 years of service; or

(ii)

become 50 years of age and completed 20 years of service; and

(B)

is eligible for the annuity under paragraph (2) or (3).

(2)

(A)For the purposes of paragraph (1), an employee referred to in that paragraph is eligible for an immediate annuity under this paragraph if the employee—

(i)

is separated from the service involuntarily other than for cause; and

(ii)

has not declined a reasonable offer of another position in the Department of Defense for which the employee is qualified, which is not lower than 2 grades (or pay levels) below the employee’s grade (or pay level), and which is within the employee’s commuting area.

(B)

For the purposes of paragraph (2)(A)(i), a separation for failure to accept a directed reassignment to a position outside the commuting area of the employee concerned or to accompany a position outside of such area pursuant to a transfer of function may not be considered to be a removal for cause.

(3)For the purposes of paragraph (1), an employee referred to in that paragraph is eligible for an immediate annuity under this paragraph if the employee satisfies all of the following conditions:

(A)

The employee is separated from the service voluntarily during a period in which the organization within the Department of Defense in which the employee is serving is undergoing a major organizational adjustment.

(B)

The employee has been employed continuously by the Department of Defense for more than 30 days before the date on which the head of theemployee’s organization requests the determinations required under subparagraph (A).

(C)

The employee is serving under an appointment that is not limited by time.

(D)

The employee is not in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance.

(E)The employee is within the scope of an offer of voluntary early retirement, as defined on the basis of one or more of the following objective criteria:

(i)

One or more organizational units.

(ii)

One or more occupational groups, series, or levels.

(iii)

One or more geographical locations.

(iv)

Any other similar objective and nonpersonal criteria that the Office of Personnel Management determines appropriate.

(4)Under regulations prescribed by the Office of Personnel Management, the determinations of whether an employee meets—

(A)

the requirements of subparagraph (A) of paragraph (3) shall be made by the Office, upon the request of the Secretary of Defense; and

(B)

the requirements of subparagraph (E) of such paragraph shall be made by the Secretary of Defense.

(5)

A determination of which employees are within the scope of an offer of early retirement shall be made only on the basis of consistent and well-documented application of the relevant criteria.

(6)In this subsection, the term “major organizational adjustment” means any of the following:

(A)

A major reorganization.

(B)

A major reduction in force.

(C)

A major transfer of function.

(D)A workforce restructuring—

(i)

to meet mission needs;

(ii)

to achieve one or more reductions in strength;

(iii)

to correct skill imbalances; or

(iv)

to reduce the number of high-grade, managerial, supervisory, or similar positions.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 571; Pub. L. 90–83, § 1(75), Sept. 11, 1967, 81 Stat. 214; Pub. L. 92–297, § 5, May 16, 1972, 86 Stat. 144; Pub. L. 92–382, Aug. 14, 1972, 86 Stat. 539; Pub. L. 93–39, June 12, 1973, 87 Stat. 73; Pub. L. 93–350, § 5, July 12, 1974, 88 Stat. 356; Pub. L. 94–183, § 2(40), (41), Dec. 31, 1975, 89 Stat. 1059; Pub. L. 95–454, title III, § 306, title IV, § 412(a), Oct. 13, 1978, 92 Stat. 1147, 1175; Pub. L. 96–70, title I, § 1241(a), Sept. 27, 1979, 93 Stat. 471; Pub. L. 96–135, § 1(a), Dec. 5, 1979, 93 Stat. 1056; Pub. L. 97–89, title VIII, § 803, Dec. 4, 1981, 95 Stat. 1161; Pub. L. 97–253, title III, § 308(a), Sept. 8, 1982, 96 Stat. 798; Pub. L. 98–94, title XII, § 1256(b), Sept. 24, 1983, 97 Stat. 701; Pub. L. 98–353, title I, § 116(c), July 10, 1984, 98 Stat. 344; Pub. L. 98–531, § 2(b), Oct. 19, 1984, 98 Stat. 2704; Pub. L. 98–615, title III, § 304(d), Nov. 8, 1984, 98 Stat. 3219; Pub. L. 99–190, § 101(d) [title III, § 315], Dec. 19, 1985, 99 Stat. 1224, 1266; Pub. L. 100–53, § 2(c), June 18, 1987, 101 Stat. 368; Pub. L. 100–325, § 2(l), May 30, 1988, 102 Stat. 582; Pub. L. 101–194, title V, § 506(b)(7), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 101–428, § 2(a), Oct. 15, 1990, 104 Stat. 928; Pub. L. 101–510, div. C, title XXXV, § 3506(a), Nov. 5, 1990, 104 Stat. 1846; Pub. L. 101–650, title III, §§ 306(c)(3), 321, Dec. 1, 1990, 104 Stat. 5110, 5117; Pub. L. 102–572, title IX, § 902(b)(2), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832; Pub. L. 105–261, div. A, title XI, § 1109(a), div. C, title XXXI, § 3154(e), Oct. 17, 1998, 112 Stat. 2143, 2255; Pub. L. 106–58, title VI, § 651(b), Sept. 29, 1999, 113 Stat. 480; Pub. L. 106–398, § 1 [[div. A], title XI, § 1152(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–320; Pub. L. 106–553, § 1(a)(2) [title III, § 308(b)(3)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 107–107, div. A, title X, § 1048(i)(5), Dec. 28, 2001, 115 Stat. 1229; Pub. L. 107–296, title XIII, §§ 1313(b)(1), 1321(a)(4)(A), Nov. 25, 2002, 116 Stat. 2294, 2297; Pub. L. 110–161, div. E, title V, § 535(a)(4), Dec. 26, 2007, 121 Stat. 2075; Pub. L. 117–225, § 3(a), Dec. 9, 2022, 136 Stat. 2293.)

5 - 4 - 7 - 2 - 3 - 7 Phased retirement

(a)For the purposes of this section—

(1)

the term “composite retirement annuity” means the annuity computed when a phased retiree attains full retirement status;

(2)

the term “full retirement status” means that a phased retiree has ceased employment and is entitled, upon application, to a composite retirement annuity;

(3)

the term “phased employment” means the less-than-full-time employment of a phased retiree;

(4)the term “phased retiree” means a retirement-eligible employee who—

(A)

makes an election under subsection (b); and

(B)

has not entered full retirement status;

(5)

the term “phased retirement annuity” means the annuity payable under this section before full retirement;

(6)

the term “phased retirement percentage” means the percentage which, when added to the working percentage for a phased retiree, produces a sum of 100 percent;

(7)

the term “phased retirement period” means the period beginning on the date on which an individual becomes entitled to receive a phased retirement annuity and ending on the date on which the individual dies or separates from phased employment;

(8)

the term “phased retirement status” means that a phased retiree is concurrently employed in phased employment and eligible to receive a phased retirement annuity;

(9)the term “retirement-eligible employee”—

(A)

means an individual who, if the individual separated from the service, would meet the requirements for retirement under subsection (a) or (b) of section 8336; but

(B)

does not include an employee described in section 8335 after the date on which the employee is required to be separated from the service by reason of such section; and

(10)the term “working percentage” means the percentage of full-time employment equal to the quotient obtained by dividing—

(A)

the number of hours per pay period to be worked by a phased retiree, as scheduled in accordance with subsection (b)(2); by

(B)

the number of hours per pay period to be worked by an employeeserving in a comparable position on a full-time basis.

(b)

(1)

With the concurrence of the head of the employing agency, and under regulations promulgated by the Director, a retirement-eligible employee who has been employed on a full-time basis for not less than the 3-year period ending on the date on which the retirement-eligible employee makes an election under this subsection may elect to enter phased retirement status.

(2)

(A)

Subject to subparagraph (B), at the time of entering phased retirement status, a phased retiree shall be appointed to a position for which the working percentage is 50 percent.

(B)

The Director may, by regulation, provide for working percentagesdifferent from the percentage specified under subparagraph (A), which shall be not less than 20 percent and not more than 80 percent.

(C)

The working percentage for a phased retiree may not be changed during the phased retiree’s phased retirement period.

(D)

(i)

Not less than 20 percent of the hours to be worked by a phased retiree shall consist of mentoring.

(ii)

The Director may, by regulation, provide for exceptions to the requirement under clause (i).

(iii)

Clause (i) shall not apply to a phased retiree serving in the United States Postal Service. Nothing in this clause shall prevent the application of clause (i) or (ii) with respect to a phased retiree serving in the Postal Regulatory Commission.

(3)A phased retiree—

(A)

may not be employed in more than one position at any time; and

(B)

may transfer to another position in the same or a different agency, only if the transfer does not result in a change in the working percentage.

(4)

A retirement-eligible employee may make not more than one election under this subsection during the retirement-eligible employee’s lifetime.

(5)

A retirement-eligible employee who makes an election under this subsection may not make an election under section 8343a.

(c)

(1)Except as otherwise provided under this subsection, the phased retirement annuity for a phased retiree is the product obtained by multiplying—

(A)

the amount of an annuity computed under section 8339 that would have been payable to the phased retiree if, on the date on which thephased retiree enters phased retirement status, the phased retiree had separated from service and retired under section 8336(a) or (b); by

(B)

the phased retirement percentage for the phased retiree.

(2)

A phased retirement annuity shall be paid in addition to the basic pay for the position to which a phased retiree is appointed during phased employment.

(3)

A phased retirement annuity shall be adjusted in accordance with section 8340.

(4)

(A)

A phased retirement annuity shall not be subject to reduction for any form of survivor annuity, shall not serve as the basis of the computation of any survivor annuity, and shall not be subject to any court order requiring a survivor annuity to be provided to any individual.

(B)

A phased retirement annuity shall be subject to a court order providing for division, allotment, assignment, execution, levy, attachment, garnishment, or other legal process on the same basis as other annuities.

(5)

Any reduction of a phased retirement annuity based on an election under section 8334(d)(2) shall be applied to the phased retirement annuity after computation under paragraph (1).

(6)

(A)

Any deposit, or election of an actuarial annuity reduction in lieu of a deposit, for military service or for creditable civilian service for which retirement deductions were not made or refunded shall be made by a retirement-eligible employee at or before the time the retirement-eligible employee enters phased retirement status. No such deposit may be made, or actuarial adjustment in lieu thereof elected, at the time aphased retiree enters full retirement status.

(B)

Notwithstanding subparagraph (A), if a phased retiree does not make such a deposit and dies in service as a phased retiree, a survivor of the phased retiree shall have the same right to make such deposit as would have been available had the employee not entered phased retirement status and died in service.

(C)

If a phased retiree makes an election for an actuarial annuity reduction under section 8334(d)(2) and dies in service as a phased retiree, the amount of any deposit upon which such actuarial reduction shall have been based shall be deemed to have been fully paid.

(7)

A phased retirement annuity shall commence on the date on which aphased retiree enters phased employment.

(8)

No unused sick leave credit may be used in the computation of the phased retirement annuity.

(d)

All basic pay not in excess of the full-time rate of pay for the position to which a phased retiree is appointed shall be deemed to be basic pay for purposes of section 8334.

(e)

Under such procedures as the Director may prescribe, a phased retiree may elect to enter full retirement status at any time. Upon making such an election, aphased retiree shall be entitled to a composite retirement annuity.

(f)

(1)Except as provided otherwise under this subsection, a composite retirement annuity is a single annuity computed under regulations prescribed by the Director, equal to the sum of—

(A)

the amount of the phased retirement annuity as of the date of full retirement, before any reduction based on an election under section 8334(d)(2), and including any adjustments made under section 8340; and

(B)the product obtained by multiplying—

(i)

the amount of an annuity computed under section 8339 that would have been payable at the time of full retirement if the individual had not elected a phased retirement and as if the individual was employed on a full-time basis in the position occupied during the phased retirement period and before any reduction forsurvivor annuity or reduction based on an election under section 8334(d)(2); by

(ii)

the working percentage.

(2)

After computing a composite retirement annuity under paragraph (1), theDirector shall adjust the amount of the annuity for any applicable reductions for a survivor annuity and any previously elected actuarial reduction under section 8334(d)(2).

(3)

A composite retirement annuity shall be adjusted in accordance with section 8340, except that subsection (c)(1) of that section shall not apply.

(4)

In computing a composite retirement annuity under paragraph (1)(B)(i), the unused sick leave to the credit of a phased retiree at the time of entry into full retirement status shall be adjusted by dividing the number of hours of unused sick leave by the working percentage.

(g)

(1)

Under such procedures and conditions as the Director may provide, and with the concurrence of the head of the employing agency, a phased retireemay elect to terminate phased retirement status and return to a full-time work schedule.

(2)

Upon entering a full-time work schedule based upon an election under paragraph (1), the phased retirement annuity of a phased retiree shall terminate.

(3)

After the termination of a phased retirement annuity under this subsection, the individual’s rights under this subchapter shall be determined based on the law in effect at the time of any subsequent separation fromservice. For purposes of this subchapter or chapter 84, at time of the subsequent separation from service, the phased retirement period shall be treated as if it had been a period of part-time employment with the work schedule described in subsection (b)(2).

(h)For purposes of section 8341—

(1)

the death of a phased retiree shall be deemed to be the death in service of an employee; and

(2)

the phased retirement period shall be deemed to have been a period of part-time employment with the work schedule described in subsection (b)(2).

(i)

Employment of a phased retiree shall not be deemed to be part-time career employment, as defined in section 3401(2).

(j)

A phased retiree is not eligible to apply for an annuity under section 8337.

(k)

For purposes of section 8341(h)(4), retirement shall be deemed to occur on the date on which a phased retiree enters into full retirement status.

(l)

For purposes of sections 8343 and 8351, and subchapter III of chapter 84, a phased retiree shall be deemed to be an employee.

(m)

A phased retiree is not subject to section 8344.

(n)

For purposes of chapter 87, a phased retiree shall be deemed to be receivingbasic pay at the rate of a full-time employee in the position to which the phased retiree is appointed.

(Added Pub. L. 112–141, div. F, title I, § 100121(a)(2), July 6, 2012, 126 Stat. 907.)

5 - 4 - 7 - 2 - 3 - 8 Disability retirement

(a)

An employee who completes 5 years of civilian service and has become disabled shall be retired on the employee’s own application or on application by the employee’s agency. Any employee shall be considered to be disabled only if the employee is found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in theemployee’s position and is not qualified for reassignment, under procedures prescribed by the Office, to a vacant position which is in the agency at the same grade or level and in which the employee would be able to render useful and efficient service. For the purpose of the preceding sentence, an employee of the United States Postal Service shall be considered not qualified for a reassignment described in that sentence if the reassignment is to a position in a different craft or is inconsistent with the terms of a collective bargaining agreement covering the employee. A judge of the United States Court of Appeals for the Armed Forces who completes 5 years of civilian service and who is found by the Office to be disabled for useful and efficient service as a judge of such court or who is removed for mental or physical disability under section 942(c) of title 10 shall be retired on the judge’s own application or upon such removal. A Member who completes 5 years of Member service and is found by the Office to be disabled for useful and efficient service as a Member because of disease or injury shall be retired on the Member’s own application. An annuity authorized by this section is computed under section 8339(g) of this title, unless the employee or Member is eligible for a higher annuity computed under section 8339(a) through (e), (n), (q), (r), or (s).

(b)

A claim may be allowed under this section only if the application is filed with the Office before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by the Office for an employee or Member who at the date of separation from service or within 1 year thereafter is mentally incompetent, if the application is filed with the Office within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.

(c)An annuitant receiving disability retirement annuity from the Fund shall be examined under the direction of the Office—

(1)

at the end of 1 year from the date of the disability retirement; and

(2)

annually thereafter until he becomes 60 years of age;

unless his disability is permanent in character. If the annuitant fails to submit to examination as required by this section, payment of the annuity shall be suspended until continuance of the disability is satisfactorily established.

(d)

If an annuitant receiving disability retirement annuity from the Fund, before becoming 60 years of age, recovers from his disability, payment of the annuity terminates on reemployment by the Government or 1 year after the date of the medical examination showing the recovery, whichever is earlier. If an annuitant receiving disability retirement annuity from the Fund, before becoming 60 years of age, is restored to an earning capacity fairly comparable to the current rate ofpay of the position occupied at the time of retirement, payment of the annuity terminates on reemployment by the Government or 180 days after the end of the calendar year in which earning capacity is so restored, whichever is earlier. Earning capacity is deemed restored if in any calendar year the income of theannuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.

(e)If an annuitant whose annuity is terminated under subsection (d) of this section is not reemployed in a position in which he is subject to this subchapter, he is deemed, except for service credit, to have been involuntarily separated from the service for the purpose of this subchapter as of the date of termination of the disability annuity, and after that termination is entitled to annuity under the applicable provisions of this subchapter. If an annuitant whose annuity is heretofore or hereafter terminated because of an earning capacity provision of this subchapter or an earlier statute—

(1)

is not reemployed in a position in which he is subject to this subchapter; and

(2)

has not recovered from the disability for which he was retired;

his annuity shall be restored at the same rate effective the first of the year following any calendar year in which his income from wages or self-employment or both is less than 80 percent of the current rate of pay of the position occupied immediately before retirement. If an annuitant whose annuity is heretofore or hereafter terminated because of a medical finding that he has recovered from disability is not reemployed in a position in which he is subject to this subchapter, his annuity shall be restored at the same rate effective from the date of medical examination showing a recurrence of the disability. The second and third sentences of this subsection do not apply to an individual who has become 62 years of age and is receiving or is eligible to receive annuity under the first sentence of this subsection.

(f)

(1)An individual is not entitled to receive—

(A)

an annuity under this subchapter, and

(B)

compensation for injury to, or disability of, such individual under subchapter I of chapter 81, other than compensation payable under section 8107,

covering the same period of time.

(2)

An individual is not entitled to receive an annuity under this subchapter and a concurrent benefit under subchapter I of chapter 81 on account of the death of the same person.

(3)

Paragraphs (1) and (2) do not bar the right of a claimant to the greater benefit conferred by either this subchapter or subchapter I of chapter 81.

(g)If an individual is entitled to an annuity under this subchapter, and the individual receives a lump-sum payment for compensation under section 8135 based on the disability or death of the same person, so much of the compensation as has been paid for a period extended beyond the date payment of the annuity commences, as determined by the Department of Labor, shall be refunded to that Department for credit to the Employees’ Compensation Fund.Before the individual may receive the annuity, the individual shall—

(1)

refund to the Department of Labor the amount representing the commuted compensation payments for the extended period; or

(2)

authorize the deduction of the amount from the annuity.

Deductions from the annuity may be made from accrued or accruing payments. The amounts deducted and withheld from the annuity shall be transmitted to the Department of Labor for reimbursement to theEmployees’ Compensation Fund. When the Department of Labor finds that the financial circumstances of an individual entitled to an annuity under this subchapter warrant deferred refunding, deductions from the annuity may be prorated against and paid from accruing payments in such manner as the Department determines appropriate.

(h)

(1)

As used in this subsection, the term “technician” means an individual employed under section 709(a) of title 32 or section 10216 of title 10 who, as a condition of the employment, is required under section 709(b) of title 32 or section 10216 of title 10, respectively, to be a member of the Selected Reserve.

(2)

(A)Except as provided in subparagraph (B) of this paragraph, an individual shall be retired under this section if the individual—

(i)

is separated from employment as a technician under section 709(e)(1) of title 32 or section 10216 of title 10 by reason of a disability that disqualifies the individual from membership in the Selected Reserve;

(ii)

is not considered to be disabled under the second sentence of subsection (a) of this section;

(iii)

is not appointed to a position in the Government (whether under paragraph (3) of this subsection or otherwise); and

(iv)

has not declined an offer of an appointment to a position in the Government under paragraph (3) of this subsection.

(B)Payment of any annuity for an individual pursuant to this subsection terminates—

(i)

on the date the individual is appointed to a position in the Government (whether pursuant to paragraph (3) of this subsection or otherwise);

(ii)

on the date the individual declines an offer of appointment to a position in the Government under paragraph (3); or

(iii)

as provided under subsection (d).

(3)Any individual applying for or receiving any annuity pursuant to this subsection shall, in accordance with regulations prescribed by the Office, be considered by any agency of the Government before any vacant position in the agency is filled if—

(A)

the position is located within the commuting area of the individual’s former position;

(B)

the individual is qualified to serve in such position, as determined by the head of the agency; and

(C)

the position is at the same grade or equivalent level as the position from which the individual was separated under section 709(e)(1) of title 32 or section 10216 of title 10.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 572; Pub. L. 90–83, § 1(76), Sept. 11, 1967, 81 Stat. 214; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–499, title IV, § 403(a), Dec. 5, 1980, 94 Stat. 2605; Pub. L. 97–253, title III, § 302(a), Sept. 8, 1982, 96 Stat. 792; Pub. L. 98–94, title XII, § 1256(c), Sept. 24, 1983, 97 Stat. 701; Pub. L. 100–238, title I, § 124(a)(1)(A), Jan. 8, 1988, 101 Stat. 1755; Pub. L. 101–189, div. A, title XIII, § 1304(b)(2), Nov. 29, 1989, 103 Stat. 1577; Pub. L. 101–428, § 2(d)(1), Oct. 15, 1990, 104 Stat. 929; Pub. L. 102–378, § 2(61), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832; Pub. L. 105–61, title V, § 516(a)(2), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 106–65, div. A, title V, § 522(d), Oct. 5, 1999, 113 Stat. 597; Pub. L. 106–553, § 1(a)(2) [title III, § 308(h)(1)], Dec. 21, 2000, 114 Stat. 2762, 2762A–88.)

5 - 4 - 7 - 2 - 3 - 9 Deferred retirement

(a)

An employee who is separated from the service or transferred to a position in which he does not continue subject to this subchapter after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62 years.

(b)

A Member who, after December 31, 1955, is separated from the service as aMember after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62 years. A Member who is separated from the service after completing 10 or more years of Member service is entitled to an annuity beginning at the age of 60 years. A Member who is separated from the service after completing 20 or more years of service, including 10 or more years ofMember service, is entitled to a reduced annuity beginning at the age of 50 years.

(c)

A judge of the United States Court of Appeals for the Armed Forces who is separated from the service after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62 years. A judge of such court who is separated from the service after completing the term of service for which he was appointed is entitled to an annuity. If an annuity is elected before the judge becomes 60 years of age, it shall be a reduced annuity.

(d)

An annuity or reduced annuity authorized by this section is computed under section 8339 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 574; Pub. L. 90–83, § 1(77), Sept. 11, 1967, 81 Stat. 214; Pub. L. 98–94, title XII, § 1256(d), Sept. 24, 1983, 97 Stat. 702; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832.)

5 - 4 - 7 - 2 - 3 - 10 Computation of annuity

(a)Except as otherwise provided by this section, the annuity of an employeeretiring under this subchapter is—

(1)

1½ percent of his average pay multiplied by so much of his total service as does not exceed 5 years; plus

(2)

1¾ percent of his average pay multiplied by so much of his total service as exceeds 5 years but does not exceed 10 years; plus

(3)

2 percent of his average pay multiplied by so much of his total service as exceeds 10 years.

However, when it results in a larger annuity, 1 percent of his average payplus $25 is substituted for the percentage specified by paragraph (1), (2), or (3) of this subsection, or any combination thereof.

(b)The annuity of a Congressional employee, or former Congressional employee, retiring under this subchapter is computed under subsection (a) of this section, except, if he has had—

(1)

at least 5 years’ service as a Congressional employee or Member or any combination thereof; and

(2)

deductions withheld from his pay or has made deposit covering his last 5 years of civilian service;

his annuity is computed with respect to his service as a Congressional employee, his military service not exceeding 5 years, and any Member service, by multiplying 2½ percent of his average pay by the years of thatservice.

(c)The annuity of a Member, or former Member with title to Member annuity, retiring under this subchapter is computed under subsection (a) of this section, except, if he has had at least 5 years’ service as a Member or Congressional employee or any combination thereof, his annuity is computed with respect to—

(1)

his service as a Member and so much of his military service as is creditable for the purpose of this paragraph; and

(2)

his Congressional employee service;

by multiplying 2½ percent of his average pay by the years of that service.

(d)

(1)The annuity of an employee retiring under section 8335(b) or 8336(c) of this title is—

(A)

2½ percent of his average pay multiplied by so much of his totalservice as does not exceed 20 years; plus

(B)

2 percent of his average pay multiplied by so much of his total service as exceeds 20 years.

(2)The annuity of an employee retiring under this subchapter who was employed by the Panama Canal Company or Canal Zone Government on September 30, 1979, is computed with respect to the period of continuousPanama Canal service from that date, disregarding any break in service of not more than 3 days, by adding—

(A)

2½ percent of the employee’s average pay multiplied by so much of that service as does not exceed 20 years; plus

(B)

2 percent of the employee’s average pay multiplied by so much of that service as exceeds 20 years.

(3)The annuity of an employee retiring under this subchapter who is employed by the Panama Canal Commission at any time during the period beginning October 1, 1990, and ending December 31, 1999, is computed, with respect to any period of service with the Panama Canal Commission, by adding—

(A)

2½ percent of the employee’s average pay multiplied by so much of that service as does not exceed 20 years; plus

(B)

2 percent of the employee’s average pay multiplied by so much of that service as exceeds 20 years.

(4)

(A)

In the case of an employee who has service as a law enforcement officer or firefighter to which paragraph (2) of this subsection applies, the annuity of that employee is increased by $8 for each full month of that service which is performed in the Republic of Panama.

(B)In the case of an employee retiring under this subchapter who—

(i)

was employed as a law enforcement officer or firefighter by the Panama Canal Company or Canal Zone Government at any time during the period beginning March 31, 1979, and ending September 30, 1979; and

(ii)

does not meet the age and service requirements of section 8336(c) of this title;

the annuity of that employee is increased by $12 for each full month of that service which occurred before October 1, 1979.

(C)

An annuity increase under this paragraph does not apply with respect to service performed after completion of 20 years of service (or any combination of service) as a law enforcement officer or firefighter.

(5)For the purpose of this subsection—

(A)“Panama Canal service” means—

(i)

service as an employee of the Panama Canal Commission; or

(ii)

service at a permanent duty station in the Canal Zone or Republic of Panama as an employee of an Executive agency conducting operations in the Canal Zone or Republic of Panama; and

(B)

“Executive agency” includes the Smithsonian Institution.

(6)The annuity of an employee retiring under section 8336(j) of this title is computed under subsection (a) of this section, except that with respect toservice on or after December 21, 1972, the employee’s annuity is—

(A)

2½ percent of the employee’s average pay multiplied by so much of the employee’s service on or after that date as does not exceed 20 years; plus

(B)

2 percent of the employee’s average pay multiplied by so much of theemployee’s service on or after that date as exceeds 20 years.

(7)

The annuity of an employee who is a judge of the United States Court of Appeals for the Armed Forces, or a former judge of such court, retiring under this subchapter is computed under subsection (a) of this section, except, with respect to his service as a judge of such court, his service as aMember, his congressional employee service, and his military service (not exceeding 5 years) creditable under section 8332 of this title, his annuity is computed by multiplying 2½ percent of his average pay by the years of thatservice.

(e)

The annuity of an employee retiring under section 8336(e) of this title is computed under subsection (a) of this section. That annuity may not be less than 50 percent of the average pay of the employee unless such employee has received, pursuant to section 8342 of this title, payment of the lump-sum credit attributable to deductions under section 8334(a) of this title during any period of employment as an air traffic controller and such employee has not deposited in the Fund the amount received, with interest, pursuant to section 8334(d)(1) of this title.

(f)The annuity computed under subsections (a) through (e), (n), (q), (r), and (s) may not exceed 80 percent of—

(1)

the average pay of the employee; or

(2)the greatest of—

(A)

the final basic pay of the Member;

(B)

the average pay of the Member; or

(C)

the final basic pay of the appointive position of a former Member who elects to have his annuity computed or recomputed under section 8344(d)(1) of this title.

(g)The annuity of an employee or Member retiring under section 8337 of this title is at least the smaller of—

(1)

40 percent of his average pay; or

(2)

the sum obtained under subsections (a) through (c), (n), (q), (r), or (s) after increasing his service of the type last performed by the period elapsing between the date of separation and the date he becomes 60 years of age.

However, if an employee or Member retiring under section 8337 of this titleis receiving retired pay or retainer pay for military service (except that specified in section 8332(c)(1) or (2) of this title) or pension or compensation from the Department of Veterans Affairs in lieu of such retired or retainerpay, the annuity of that employee or Member shall be computed under subsection (a), (b), (c), (n), (q), (r), or (s), as appropriate, excluding credit formilitary service from that computation. If the amount of the annuity so computed, plus the retired or retainer pay which is received, or which would be received but for the pension or compensation from the Department of Veterans Affairs in lieu of such retired or retainer pay, is less than the smaller of the annuity otherwise payable under paragraph (1) or (2) of this subsection, an amount equal to the difference shall be added to the annuity payable under subsection (a), (b), (c), (n), (q), (r), or (s), as appropriate.

(h)

The annuity computed under subsections (a), (b), (d)(5), and (f) of this section for an employee retiring under section 8336(d), (h), (j), or (o) of this title is reduced by ⅙ of 1 percent for each full month the employee is under 55 years of age at the date of separation. The annuity computed under subsections (c) and (f) of this section for a Member retiring under the second or third sentence of section 8336(g) of this title or the third sentence of section 8338(b) of this title is reduced by 1⁄12 of 1 percent for each full month not in excess of 60 months, and ⅙ of 1 percent for each full month in excess of 60 months, the Member is under 60 years of age at the date of separation. The annuity computed under subsections (a), (d)(6), and (f) of this section for a judge of the United States Court of Appeals for the Armed Forces retiring under the second sentence of section 8336(k) of this title or the third sentence of section 8338(c) of this title is reduced by 1⁄12 of 1 percent for each full month not in excess of 60 months, and ⅙ of 1 percent for each full month in excess of 60 months, the judge is under 60 years of age at the date of separation.

(i)For the purposes of subsections (a)–(h), (n), (q), (r), or (s), the total service of any employee or Member shall not include any period of civilian service after July 31, 1920, for which retirement deductions or deposits have not been made under section 8334(a) of this title unless—

(1)

the employee or Member makes a deposit for such period as provided in section 8334(c) or (d)(1) of this title; or

(2)

no deposit is required for such service, as provided under section 8334(g) of this title or under any statute.

(j)

(1)The annuity computed under subsections (a)–(i), (n), (q), (r), and (s) (or a portion of the annuity, if jointly designated for this purpose by the employeeor Member and the spouse of the employee or Member under procedures prescribed by the Office of Personnel Management) for an employee orMember who is married at the time of retiring under this subchapter is reduced as provided in paragraph (4) of this subsection in order to provide asurvivor annuity for the spouse under section 8341(b) of this title, unless theemployee or Member and the spouse jointly waive the spouse’s right to asurvivor annuity in a written election filed with the Office at the time that theemployee or Member retires. Each such election shall be made in accordance with such requirements as the Office shall, by regulation, prescribe, and shall be irrevocable. The Office shall provide, by regulation, that an employee or Member may waive the survivor annuity without the spouse’s consent if the employee or Member establishes to the satisfaction of the Office—

(A)

that the spouse’s whereabouts cannot be determined, or

(B)

that, due to exceptional circumstances, requiring the employee orMember to seek the spouse’s consent would otherwise be inappropriate.

(2)

If an employee or Member has a former spouse who is entitled to asurvivor annuity as provided in section 8341(h) of this title, the annuity of theemployee or Member computed under subsections (a)–(i), (n), (q), (r), and (s) (or any designated portion of the annuity, in the event that the former spouse is entitled to less than 55 percent of the employee or Member’s annuity) is reduced as provided in paragraph (4) of this subsection.

(3)An employee or Member who has a former spouse may elect, under procedures prescribed by the Office, to have the annuity computed under subsections (a)–(i), (n), (q), (r), and (s) or a portion thereof reduced as provided in paragraph (4) of this subsection in order to provide a survivor annuity for such former spouse under section 8341(h) of this title, unless all rights to survivor benefits for such former spouse under this subchapter based on marriage to such employee or Member were waived under paragraph (1) of this subsection. An election under this paragraph shall be made at the time of retirement or, if later, within 2 years after the date on which the marriage of the former spouse to the employee or Member is dissolved, subject to a deposit in the Fund by the retired employee orMember of an amount determined by the Office, as nearly as may be administratively feasible, to reflect the amount by which the annuity of suchemployee or Member would have been reduced if the election had been continuously in effect since the date the annuity commenced, plus interest. For the purposes of the preceding sentence, the annual rate of interest for each year during which the annuity would have been reduced if the election had been in effect since the date the annuity commenced shall be 6 percent. The Office shall, by regulation, provide for payment of the deposit required under this paragraph by a reduction in the annuity of the employee orMember. The reduction shall, to the extent practicable, be designed so that the present value of the future reduction is actuarially equivalent to the deposit required under this paragraph, except that the total reductions in the annuity of an employee or Member to pay deposits required by the provisions of this paragraph, paragraph (5), or subsection (k)(2) shall not exceed 25 percent of the annuity computed under subsections (a) through (i), (n), (q), and (r), including adjustments under section 8340. The reduction, which shall be effective on the same date as the election under this paragraph, shall be permanent and unaffected by any future termination of the entitlement of the former spouse. Such reduction shall be independent of and in addition to the reduction required under the first sentence of this paragraph. An election under this paragraph—

(A)shall not be effective to the extent that it—

(i)conflicts with—

(I)

any court order or decree referred to in subsection (h)(1) of section 8341 of this title, which was issued before the date of such election; or

(II)

any agreement referred to in such subsection which was entered into before such date; or

(ii)

would cause the total of survivor annuities payable under subsections (b), (d), (f), and (h) of section 8341 of this title based on the service of the employee or Member to exceed 55 percent of the annuity to which the employee or Member is entitled under subsections (a)–(i), (n), (q), (r), and (s); and

(B)

shall not be effective, in the case of an employee or Member who is then married, unless it is made with the spouse’s written consent.

The Office shall provide by regulation that subparagraph (B) of this paragraph may be waived for either of the reasons set forth in the last sentence of paragraph (1) of this subsection. In the case of a retired employee or Member whose annuity is being reduced in order to provide a survivor annuity for a former spouse, an election to provide or increase a survivor annuity for any other former spouse (and to continue an appropriate reduction) may be made within the same period that, and subject to the same conditions under which, an election could be made under paragraph (5)(B) of this subsection for a current spouse (subject to the provisions of this paragraph relating to consent of a current spouse, if the retired employee or Member is then married). The opportunity to make an election under the preceding sentence is in addition to any opportunity otherwise afforded under this paragraph.

(4)

In order to provide a survivor annuity or combination of survivorannuities under subsections (b), (d), (f), and (h) of section 8341 of this title, the annuity of an employee or Member (or any designated portion or portions thereof) is reduced by 2½ percent of the first $3,600 thereof plus 10 percent of so much thereof as exceeds $3,600.

(5)

(A)Any reduction in an annuity for the purpose of providing a survivorannuity for the current spouse of a retired employee or Member shall be terminated for each full month—

(i)

after the death of the spouse, or

(ii)

after the dissolution of the spouse’s marriage to the employee orMember, except that an appropriate reduction shall be made thereafter if the spouse is entitled, as a former spouse, to a survivor annuity under section 8341(h) of this title.

(B)

Any reduction in an annuity for the purpose of providing a survivorannuity for a former spouse of a retired employee or Member shall be terminated for each full month after the former spouse remarries before reaching age 55 or dies. This reduction shall be replaced by an appropriate reduction or reductions under paragraph (4) of this subsection if the retired employee or Member has (i) another former spouse who is entitled to a survivor annuity under section 8341(h) of this title, (ii) a current spouse to whom the employee or Member was married at the time of retirement and with respect to whom a survivor annuity was not jointly waived under paragraph (1) of this subsection, or (iii) a current spouse whom the employee or Member married after retirement and with respect to whom an election has been made under subparagraph (C) of this paragraph or subsection (k)(2) of this section.

(C)

(i)

Upon remarriage, a retired employee or Member who was married at the time of retirement (including an employee or Member whose annuity was not reduced to provide a survivor annuity for the employee or Member’s spouse or former spouse as of the time of retirement) may irrevocably elect during such marriage, in a signed writing received by the Office within 2 years after such remarriage or, if later, within 2 years after the death or remarriage of any former spouse of such employee or Member who was entitled to a survivor annuity under section 8341(h) of this title (or of the last such surviving former spouse, if there was more than one), a reduction in the employee or Member’s annuity under paragraph (4) of this subsection for the purpose of providing an annuity for suchemployee or Member’s spouse in the event such spouse survives theemployee or Member.

(ii)

Such election and reduction shall be effective the first day of the second month after the election is received by the Office, but not less than 9 months after the date of the remarriage, and the retired employee or Member shall deposit in the Fund an amount determined by the Office of Personnel Management, as nearly as may be administratively feasible, to reflect the amount by which the annuity of such retired employee or Member would have been reduced if the election had been in effect since the date of retirement or, if later, the date the previous reduction in such retiredemployee or Member’s annuity was terminated under subparagraph (A) or (B) of this paragraph, plus interest. For the purposes of the preceding sentence, the annual rate of interest for each year during which an annuity would have been reduced if the election had been in effect on and after the applicable date referred to in such sentence shall be 6 percent.

(iii)

The Office shall, by regulation, provide for payment of the deposit required under clause (ii) by a reduction in the annuity of the employee or Member. The reduction shall, to the extent practicable, be designed so that the present value of the future reduction is actuarially equivalent to the deposit required under clause (ii), except that total reductions in the annuity of an employee orMember to pay deposits required by the provisions of this paragraph or paragraph (3) shall not exceed 25 percent of the annuity computed under subsections (a) through (i), (n), (q), and (r), including adjustments under section 8340. The reduction required by this clause, which shall be effective on the same date as the election under clause (i), shall be permanent and unaffected by any future termination of the marriage. Such reduction shall be independent of and in addition to the reduction required under clause (i).

(iv)

Notwithstanding any other provision of this subparagraph, an election under this subparagraph may not be made for the purpose of providing an annuity in the case of a spouse by remarriage if such spouse was married to the employee or Member at the time of such employee or Member’s retirement, and all rights to survivor benefits for such spouse under this subchapter based on marriage to such employee or Member were then waived under paragraph (1) of this subsection or a similar prior provision of law.

(v)An election to provide a survivor annuity to a person under this subparagraph—

(I)

shall prospectively void any election made by the employee orMember under subsection (k)(1) of this section with respect to such person; or

(II)

shall, if an election was made by the employee or Member under such subsection (k)(1) with respect to a different person, prospectively void such election if appropriate written application is made by such employee or Member at the time of making the election under this subparagraph.

(vi)The deposit provisions of clauses (ii) and (iii) of this subparagraph shall not apply if—

(I)

the employee or Member makes an election under this subparagraph after having made an election under subsection (k)(1) of this section; and

(II)

the election under such subsection (k)(1) becomes void under clause (v) of this subparagraph.

(k)

(1)

At the time of retiring under section 8336 or 8338 of this title, anemployee or Member who is found to be in good health by the Office may elect a reduced annuity instead of an annuity computed under subsections (a)–(i), (n), (q), (r), and (s) and name in writing an individual having an insurable interest in the employee or Member to receive an annuity under section 8341(c) of this title after the death of the retired employee orMember. The annuity of the employee or Member making the election is reduced by 10 percent, and by 5 percent for each full 5 years the individual named is younger than the retiring employee or Member. However, the total reduction may not exceed 40 percent. An annuity which is reduced under this paragraph or any similar prior provision of law shall, effective the first day of the month following the death of the individual named under this paragraph, be recomputed and paid as if the annuity had not been so reduced. In the case of a married employee or Member, an election under this paragraph on behalf of the spouse may be made only if any right of such spouse to a survivor annuity based on the service of such employee orMember is waived in accordance with subsection (j)(1) of this section.

(2)

(A)

An employee or Member, who is unmarried at the time of retiring under a provision of law which permits election of a reduced annuity with a survivor annuity payable to such employee or Member’s spouse and who later marries, may irrevocably elect, in a signed writing received in the Office within 2 years after such employee or Member marries or, if later, within 2 years after the death or remarriage of any former spouseof such employee or Member who was entitled to a survivor annuity under section 8341(h) of this title (or of the last such surviving former spouse, if there was more than one), a reduction in the retired employee or Member’s current annuity as provided in subsection (j) of this section.

(B)

(i)The election and reduction shall take effect on the first day of the first month beginning after the expiration of the 9-month period beginning on the date of marriage. Any such election to provide a survivor annuity for a person—

(I)

shall prospectively void any election made by the employee orMember under paragraph (1) of this subsection with respect to such person; or

(II)

shall, if an election was made by the employee or Member under such paragraph with respect to a different person, prospectively void such election if appropriate written application is made by such employee or Member at the time of making the election under this paragraph.

(ii)

The retired employee or Member shall deposit in the Fund an amount determined by the Office of Personnel Management, as nearly as may be administratively feasible, to reflect the amount by which the retired employee or Member’s annuity would have been reduced under subsection (j)(4) of this section since the commencing date of the annuity, if the employee or Member had been married at the time of retirement and had elected to provide a survivor annuity at that time, plus interest. For the purposes of the preceding sentence, the annual rate of interest for each year during which the annuity would have been reduced if the election had been in effect since the date of the annuity commenced shall be 6 percent.

(C)

The Office shall, by regulation, provide for payment of the deposit required under subparagraph (B)(ii) by a reduction in the annuity of the employee or Member. The reduction shall, to the extent practicable, be designed so that the present value of the future reduction is actuarially equivalent to the deposit required under subparagraph (B)(ii), except that total reductions in the annuity of an employee or Member to pay deposits required by this subsection or subsection (j)(3) shall not exceed 25 percent of the annuity computed under subsections (a) through (i), (n), (q), and (r), including adjustments under section 8340. The reduction required by this subparagraph, which shall be effective on the same date as the election under subparagraph (A), shall be permanent and unaffected by any future termination of the marriage. Such reduction shall be independent of and in addition to the reduction required under subparagraph (A).

(D)Subparagraphs (B)(ii) and (C) of this paragraph shall not apply if—

(i)

the employee or Member makes an election under this paragraph after having made an election under paragraph (1) of this subsection; and

(ii)

the election under such paragraph (1) becomes void under subparagraph (B)(i) of this paragraph.

(l)The annuity computed under subsections (a)–(k), (n), (q), (r), and (s) for an employee who is a citizen of the United States is increased by $36 for each year of service in the employ of—

(1)

the Alaska Engineering Commission, or The Alaska Railroad, in Alaska between March 12, 1914, and July 1, 1923; or

(2)

the Isthmian Canal Commission, or the Panama Railroad Company, on the Isthmus of Panama between May 4, 1904, and April 1, 1914.

(m)

In computing any annuity under subsections (a) through (e), (n), (q), (r), and (s), the total service of an employee who retires on an immediate annuity or dies leaving a survivor or survivors entitled to annuity includes, without regard to the limitations imposed by subsection (f) of this section, the days of unused sick leave to his credit under a formal leave system, except that these days will not be counted in determining average pay or annuity eligibility under this subchapter. For the purpose of this subsection, in the case of any suchemployee who is excepted from subchapter I of chapter 63 of this title under section 6301(2)(x)–(xiii) of this title, the days of unused sick leave to his credit include any unused sick leave standing to his credit when he was excepted from such subchapter.

(n)

The annuity of an employee who is a Court of Federal Claims judge,bankruptcy judge, or United States magistrate judge is computed, with respect to service as a Court of Federal Claims judge, as a commissioner of the Court of Claims, as a referee in bankruptcy, as a bankruptcy judge, as a United States magistrate judge, and as a United States commissioner, and with respect to themilitary service of any such individual (not exceeding 5 years) creditable under section 8332 of this title, by multiplying 2½ percent of the individual’s average pay by the years of that service.

(o)

(1)

(A)An employee or Member—

(i)

who, at the time of retirement, is married, and

(ii)

who notifies the Office at such time (in accordance with subsection (j)) that a survivor annuity under section 8341(b) of this title is not desired,

may, during the 18-month period beginning on the date of the retirement of such employee or Member, elect to have a reduction under subsection (j) made in the annuity of the employee orMember (or in such portion thereof as the employee or Member may designate) in order to provide a survivor annuity for the spouse of such employee or Member.

(B)An employee or Member—

(i)

who, at the time of retirement, is married, and

(ii)

who at such time designates (in accordance with subsection (j)) that a limited portion of the annuity of such employee or Member is to be used as the base for a survivor annuity under section 8341(b) of this title,

may, during the 18-month period beginning on the date of the retirement of such employee or Member, elect to have a greater portion of the annuity of such employee or Member so used.

(2)

(A)

An election under subparagraph (A) or (B) of paragraph (1) of this subsection shall not be considered effective unless the amount specified in subparagraph (B) of this paragraph is deposited into the Fund before the expiration of the applicable 18-month period under paragraph (1).

(B)The amount to be deposited with respect to an election under this subsection is an amount equal to the sum of—

(i)

the additional cost to the System which is associated with providing a survivor annuity under subsection (b)(2) of this section and results from such election taking into account (I) the difference (for the period between the date on which the annuity of the participant or former participant commences and the date of the election) between the amount paid to such participant or former participant under this subchapter and the amount which would have been paid if such election had been made at the time the participant or former participant applied for the annuity, and (II) the costs associated with providing for the later election; and

(ii)

interest on the additional cost determined under clause (i) of this subparagraph computed using the interest rate specified or determined under section 8334(e) of this title for the calendar year in which the amount to be deposited is determined.

(3)

An election by an employee or Member under this subsection voids prospectively any election previously made in the case of such employee orMember under subsection (j).

(4)

An annuity which is reduced in connection with an election under this subsection shall be reduced by the same percentage reductions as were in effect at the time of the retirement of the employee or Member whose annuity is so reduced.

(5)

Rights and obligations resulting from the election of a reduced annuity under this subsection shall be the same as the rights and obligations which would have resulted had the employee or Member involved elected such annuity at the time of retiring.

(6)

The Office shall, on an annual basis, inform each employee or Member who is eligible to make an election under this subsection of the right to make such election and the procedures and deadlines applicable to such election.

(p)

(1)In computing an annuity under this subchapter for an employee whoseservice includes service that was performed on a part-time basis—

(A)

the average pay of the employee, to the extent that it includes pay forservice performed in any position on a part-time basis, shall be determined by using the annual rate of basic pay that would be payable for full-time service in the position; and

(B)

the benefit so computed shall then be multiplied by a fraction equal to the ratio which the employee’s actual service, as determined by prorating an employee’s total service to reflect the service that was performed on a part-time basis, bears to the total service that would be creditable for the employee if all of the service had been performed on a full-time basis.

(2)

For the purpose of this subsection, employment on a part-time basis shall not be considered to include employment on a temporary or intermittent basis.

(3)In the administration of paragraph (1)—

(A)

subparagraph (A) of such paragraph shall apply with respect to service performed before, on, or after April 7, 1986; and

(B)subparagraph (B) of such paragraph—

(i)

shall apply with respect to that portion of any annuity which is attributable to service performed on or after April 7, 1986; and

(ii)

shall not apply with respect to that portion of any annuity which is attributable to service performed before April 7, 1986.

(q)The annuity of a member of the Capitol Police, or former member of the Capitol Police, retiring under this subchapter is computed in accordance with subsection (b), except that, in the case of a member who retires under section 8335(c) or 8336(m), and who meets the requirements of subsection (b)(2), the annuity of such member is—

(1)

2½ percent of the member’s average pay multiplied by so much of suchmember’s total service as does not exceed 20 years; plus

(2)

2 percent of the member’s average pay multiplied by so much of suchmember’s total service as exceeds 20 years.

(r)

The annuity of a member of the Supreme Court Police, or former member of the Supreme Court Police, retiring under this subchapter is computed in accordance with subsection (d).

(s)

 [1] The annuity of a Member who has served in a position in the executive branch for which the rate of basic pay was reduced for the duration of theservice of the Member in that position to remove the impediment to the appointment of the Member imposed by article I, section 6, clause 2 of the Constitution, shall, subject to a deposit in the Fund as provided under section 8334(m), be computed as though the rate of basic pay which would otherwise have been in effect during that period of service had been in effect.

(s)

(1)

 1 For purposes of this subsection, the term “physicians comparability allowance” refers to an amount described in section 8331(3)(H).

(2)

Except as otherwise provided in this subsection, no part of a physicians comparability allowance shall be treated as basic pay for purposes of any computation under this section unless, before the date of the separation on which entitlement to annuity is based, the separating individual has completed at least 15 years of service as a Government physician (whether performed before, on, or after the date of the enactment of this subsection).

(3)

If the condition under paragraph (2) is met, then, any amounts received by the individual in the form of a physicians comparability allowance shall (for the purposes referred to in paragraph (2)) be treated as basic pay, but only to the extent that such amounts are attributable to service performed on or after the date of the enactment of this subsection, and only to the extent of the percentage allowable, which shall be determined as follows:

If the total amount of service performed, on or after the date of the enactment of this subsection, as a Government physicianis:	Then, the percentage allowable is:
Less than 2 years	0
At least 2 but less than 4 years	25
At least 4 but less than 6 years	50
At least 6 but less than 8 years	75
At least 8 years	100.

(4)Notwithstanding any other provision of this subsection, 100 percent of all amounts received as a physicians comparability allowance shall, to the extent attributable to service performed on or after the date of the enactment of this subsection, be treated as basic pay (without regard to any of the preceding provisions of this subsection) for purposes of computing—

(A)

an annuity under subsection (g); and

(B)

a survivor annuity under section 8341, if based on the service of an individual who dies before separating from service.

(u) [2] The annuity of an employee retiring under this subchapter with service credited under section 8332(b)(17) shall be reduced by the amount necessary to ensure that the present value of the annuity payable to the employee is actuarially equivalent to the present value of the annuity that would be payable to the employee under this subchapter if it were computed—

(1)

on the basis of service that does not include service credited under section 8332(b)(17); and

(2)

assuming the employee separated from service on the actual date of the separation of the employee.

The amount of the reduction shall be computed under regulations prescribed by the Office of Personnel Management for the administration of this subsection.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 574; Pub. L. 90–83, § 1(78), Sept. 11, 1967, 81 Stat. 214; Pub. L. 90–206, title II, § 224(b), Dec. 16, 1967, 81 Stat. 642; Pub. L. 90–486, § 5(c), Aug. 13, 1968, 82 Stat. 757; Pub. L. 91–93, title II, § 203, Oct. 20, 1969, 83 Stat. 139; Pub. L. 91–658, § 2, Jan. 8, 1971, 84 Stat. 1961; Pub. L. 92–297, §§ 6, 7(3), May 16, 1972, 86 Stat. 144; Pub. L. 93–260, § 2(a), Apr. 9, 1974, 88 Stat. 76; Pub. L. 93–350, § 6, July 12, 1974, 88 Stat. 356; Pub. L. 93–474, § 1, Oct. 26, 1974, 88 Stat. 1438; Pub. L. 94–126, § 1(b), Nov. 12, 1975, 89 Stat. 679; Pub. L. 94–397, § 1(d), Sept. 3, 1976, 90 Stat. 1203; Pub. L. 95–256, § 5(d), Apr. 6, 1978, 92 Stat. 191; Pub. L. 95–317, §§ 1(a), (c), 2, July 10, 1978, 92 Stat. 382; Pub. L. 95–454, title IV, § 412(b), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1175, 1224; Pub. L. 95–519, § 3, Oct. 25, 1978, 92 Stat. 1819; Pub. L. 95–598, title III, § 338(a), Nov. 6, 1978, 92 Stat. 2681; Pub. L. 96–54, § 2(a)(49), Aug. 14, 1979, 93 Stat. 384; Pub. L. 96–70, title I, § 1242(a), Sept. 27, 1979, 93 Stat. 472; Pub. L. 96–135, § 1(b), (c), Dec. 5, 1979, 93 Stat. 1057; Pub. L. 96–391, § 1, Oct. 7, 1980, 94 Stat. 1557; Pub. L. 96–499, title IV, § 404(a), Dec. 5, 1980, 94 Stat. 2606; Pub. L. 97–253, title III, § 303(b), Sept. 8, 1982, 96 Stat. 794; Pub. L. 97–276, § 151(f), Oct. 2, 1982, 96 Stat. 1202; Pub. L. 98–94, title XII, § 1256(e), Sept. 24, 1983, 97 Stat. 702; Pub. L. 98–249, § 3(a), Mar. 31, 1984, 98 Stat. 117; Pub. L. 98–271, § 3(a), Apr. 30, 1984, 98 Stat. 163; Pub. L. 98–299, § 3(a), May 25, 1984, 98 Stat. 214; Pub. L. 98–325, § 3(a), June 20, 1984, 98 Stat. 268; Pub. L. 98–353, title I, §§ 112, 116(d), 121(f), July 10, 1984, 98 Stat. 343, 344, 346; Pub. L. 98–531, § 2(c), Oct. 19, 1984, 98 Stat. 2704; Pub. L. 98–615, § 2(3), Nov. 8, 1984, 98 Stat. 3195; Pub. L. 99–251, title II, § 203(a)–(c), title III, § 307(a), Feb. 27, 1986, 100 Stat. 23, 24, 28; Pub. L. 99–272, title XV, § 15204(a)(1), Apr. 7, 1986, 100 Stat. 334; Pub. L. 100–53, § 2(d), June 18, 1987, 101 Stat. 368; Pub. L. 101–194, title V, § 506(b)(8), Nov. 30, 1989, 103 Stat. 1759; Pub. L. 101–428, § 2(c)(1), (d)(2)–(6), Oct. 15, 1990, 104 Stat. 928, 929; Pub. L. 101–508, title VII, § 7001(b)(2)(B), (C), Nov. 5, 1990, 104 Stat. 1388–329; Pub. L. 101–510, div. C, title XXXV, § 3506(b), Nov. 5, 1990, 104 Stat. 1847; Pub. L. 101–650, title III, §§ 306(c)(4), 321, Dec. 1, 1990, 104 Stat. 5110, 5117; Pub. L. 102–54, § 13(b)(4), June 13, 1991, 105 Stat. 274; Pub. L. 102–198, § 7(b), Dec. 9, 1991, 105 Stat. 1624; Pub. L. 102–378, § 2(62), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 102–572, title IX, § 902(b)(2), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 103–66, title XI, § 11004(a)(1), (2), Aug. 10, 1993, 107 Stat. 410, 411; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832; Pub. L. 104–106, div. A, title XV, § 1505(b)(3), Feb. 10, 1996, 110 Stat. 514; Pub. L. 105–61, title V, § 516(a)(3), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 105–261, div. A, title XI, § 1109(c)(1), Oct. 17, 1998, 112 Stat. 2145; Pub. L. 106–58, title VI, § 651(b), Sept. 29, 1999, 113 Stat. 480; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(4), title XI, § 1152(c)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293, 1654A–322; Pub. L. 106–553, § 1(a)(2) [title III, § 308(b)(4), (h)(2)–(6)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87 to 2762A–89; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 141(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–235; Pub. L. 106–571, § 3(b)(1), Dec. 28, 2000, 114 Stat. 3055; Pub. L. 107–107, div. A, title XI, § 1132(a)(3), Dec. 28, 2001, 115 Stat. 1243; Pub. L. 107–296, title XIII, § 1321(a)(4)(B), Nov. 25, 2002, 116 Stat. 2297; Pub. L. 111–84, div. A, title XIX, § 1903(a), Oct. 28, 2009, 123 Stat. 2616.)

5 - 4 - 7 - 2 - 3 - 11 Cost-of-living adjustment of annuities

(a)For the purpose of this section—

(1)

the term “base quarter”, as used with respect to a year, means the calendar quarter ending on September 30, of such year; and

(2)

the price index for a base quarter is the arithmetical mean of such index for the 3 months comprising such quarter.

(b)

Except as provided in subsection (c) of this section, effective December 1 of each year, each annuity payable from the Fund having a commencing date not later than such December 1 shall be increased by the percent change in the price index for the base quarter of such year over the price index for the base quarter of the preceding year in which an adjustment under this subsection was made, adjusted to the nearest ⅒ of 1 percent.

(c)Eligibility for an annuity increase under this section is governed by the commencing date of each annuity payable from the Fund as of the effective date of an increase, except as follows:

(1)The first increase (if any) made under subsection (b) of this section to an annuity which is payable from the Fund to an employee or Member who retires, to the widow, widower, or former spouse,[1] of a deceased employee or Member, or to the widow, widower, former spouse, or insurable interest designee of a deceased annuitant whose annuity has not been increased under this subsection or subsection (b) of this section, shall be equal to the product (adjusted to the nearest ⅒ of 1 percent) of—

(A)

1⁄12 of the applicable percent change computed under subsection (b) of this section, multiplied by

(B)the number of months (not to exceed 12 months, counting any portion of a month as a month)—

(i)

for which the annuity was payable from the Fund before the effective date of the increase, or

(ii)

in the case of a widow, widower, former spouse, or insurable interest designee of a deceased annuitant whose annuity has not been so increased, since the annuity was first payable to the deceased annuitant.

(2)

Effective from its commencing date, an annuity payable from the Fund to an annuitant’s survivor (except a child entitled under section 8341(e) of this title), which annuity commences the day after the death of the annuitant and after the effective date of the first increase under this section, shall be increased by the total percent increase the annuitant was receiving under this section at death. However, the increase in a survivor annuity authorized by section 8 of the Act of May 29, 1930, as amended to July 6, 1950, shall be computed as if the annuity commencing date had been the effective date of the first increase under this section.

(3)

For the purpose of computing the annuity of a child under section 8341(e) of this title that commences after October 31, 1969, the items $900, $1,080, $2,700, and $3,240 appearing in section 8341(e) of this title shall be increased by the total percent increases allowed and in force under this section on or after such day and, in case of a deceased annuitant, the items 60 percent and 75 percent appearing in section 8341(e) of this title shall be increased by the total percent allowed and in force to the annuitant under this section on or after such day.

(d)

This section does not authorize an increase in an additional annuity purchased at retirement by voluntary contributions.

(e)

The monthly installment of annuity after adjustment under this section shall be rounded to the next lowest dollar. However, the monthly installment shall after adjustment reflect an increase of at least $1.

(f)Effective September 1, 1966, or on the commencing date of annuity, whichever is later, the annuity of each surviving spouse whose entitlement to annuity payable from the Fund resulted from the death of—

(1)

an employee or Member before October 11, 1962; or

(2)

a retired employee or Member whose retirement was based on a separation from service before October 11, 1962;

is increased by 10 percent.

(g)

(1)An annuity shall not be increased by reason of any adjustment under this section to an amount which exceeds the greater of—

(A)

the maximum pay payable for GS–15 30 days before the effective date of the adjustment under this section; or

(B)the final pay (or average pay, if higher) of the employee or Member with respect to whom the annuity is paid, increased by the overall annual average percentage adjustments (compounded) in rates of pay of the General Schedule under subchapter I of chapter 53 of this title during the period—

(i)

beginning on the date the annuity commenced (or, in the case of a survivor of the retired employee or Member, the date the employee’s or Member’s annuity commenced), and

(ii)

ending on the effective date of the adjustment under this section.

(2)

For the purposes of paragraph (1) of this subsection, “pay” means the rate of salary or basic pay as payable under any provision of law, including any provision of law limiting the expenditure of appropriated funds.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 576; Pub. L. 90–83, § 1(79), Sept. 11, 1967, 81 Stat. 215; Pub. L. 91–93, title II, § 204, Oct. 20, 1969, 83 Stat. 139; Pub. L. 93–136, § 1, Oct. 24, 1973, 87 Stat. 490; Pub. L. 94–126, § 2(b), Nov. 12, 1975, 89 Stat. 679; Pub. L. 94–183, § 2(35), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 94–440, title XIII, § 1306(a), (c)(1), Oct. 1, 1976, 90 Stat. 1462; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–499, title IV, § 401(a), Dec. 5, 1980, 94 Stat. 2605; Pub. L. 97–35, title XVII, § 1702(a), (b), Aug. 13, 1981, 95 Stat. 754; Pub. L. 97–253, title III, §§ 304(a), 309(a), Sept. 8, 1982, 96 Stat. 795, 798; Pub. L. 98–270, title II, § 201(a), Apr. 18, 1984, 98 Stat. 157; Pub. L. 98–369, div. B, title II, § 2201(b), July 18, 1984, 98 Stat. 1058; Pub. L. 99–251, title II, § 204, Feb. 27, 1986, 100 Stat. 25.)

5 - 4 - 7 - 2 - 3 - 12 Survivor annuities

(a)For the purpose of this section—

(1)“widow” means the surviving wife of an employee or Member who—

(A)

was married to him for at least 9 months immediately before his death; or

(B)

is the mother of issue by that marriage;

(2)“widower” means the surviving husband of an employee or Member who—

(A)

was married to her for at least 9 months immediately before her death; or

(B)

is the father of issue by that marriage;

(3)

“dependent”, in the case of any child, means that the employee orMember involved was, at the time of the employee or Member’s death, either living with or contributing to the support of such child, as determined in accordance with such regulations as the Office of Personnel Managementshall prescribe; and

(4)“child” means—

(A)

an unmarried dependent child under 18 years of age, including (i) an adopted child, and (ii) a stepchild but only if the stepchild lived with theemployee or Member in a regular parent-child relationship, and (iii) a recognized natural child, and (iv) a child who lived with and for whom a petition of adoption was filed by an employee or Member, and who is adopted by the surviving spouse of the employee or Member after his death;

(B)

such unmarried dependent child regardless of age who is incapable of self-support because of mental or physical disability incurred before age 18; or

(C)

such unmarried dependent child between 18 and 22 years of age who is a student regularly pursuing a full-time course of study or training in residence in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution.

For the purpose of this paragraph and subsection (e) of this section, a child whose 22nd birthday occurs before July 1 or after August 31 of a calendar year, and while he is regularly pursuing such a course of study or training, is deemed to have become 22 years of age on the first day of July after that birthday. A child who is a student is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 5 months and if he shows to the satisfaction of the Office of Personnel Management that he has a bona fide intention of continuing to pursue a course of study or training in the same or different school during the school semester (or other period into which the school year is divided) immediately after the interim.

(b)

(1)

Except as provided in paragraph (2) of this subsection, if an employee orMember dies after having retired under this subchapter and is survived by a widow or widower, the widow or widower is entitled to an annuity equal to 55 percent (or 50 percent if retired before October 11, 1962) of an annuity computed under section 8339(a)–(i), (n), (p), (q), (r), and (s) as may apply with respect to the annuitant, or of such portion thereof as may have been designated for this purpose under section 8339(j)(1) of this title, unless the right to a survivor annuity was waived under such section 8339(j)(1) or, in the case of remarriage, the employee or Member did not file an election under section 8339(j)(5)(C) or section 8339(k)(2) of this title, as the case may be.

(2)If an annuitant—

(A)

who retired before April 1, 1948; or

(B)

who elected a reduced annuity provided in paragraph (2) of section 8339(k) of this title;

dies and is survived by a widow or widower, the widow or widower is entitled to an annuity in an amount which would have been paid had the annuitant been married to the widow or widower at the time of retirement.

(3)A spouse acquired after retirement is entitled to a survivor annuity under this subsection only upon electing this annuity instead of any other survivorbenefit to which he may be entitled under this subchapter or another retirement system for Government employees. The annuity of the widow or widower under this subsection commences on the day after the annuitant dies. This annuity and the right thereto terminate on the last day of the month before the widow or widower—

(A)

dies; or

(B)

except as provided in subsection (k), remarries before becoming 55 years of age.

(4)Notwithstanding the preceding provisions of this subsection, the annuity payable under this subsection to the widow or widower of a retiredemployee or Member may not exceed the difference between—

(A)

the amount which would otherwise be payable to such widow or widower under this subsection (determined without regard to any waiver or designation under section 8339(j)(1) of this title or a prior similar provision of law), and

(B)

the amount of the survivor annuity payable to any former spouse of such employee or Member under subsection (h) of this section.

(c)

The annuity of a survivor named under section 8339(k)(1) of this title is 55 percent of the reduced annuity of the retired employee or Member. The annuity of the survivor commences on the day after the retired employee or Member dies. This annuity and the right thereto terminate on the last day of the month before the survivor dies.

(d)If an employee or Member dies after completing at least 18 months of civilianservice, his widow or widower is entitled to an annuity equal to 55 percent of an annuity computed under section 8339(a)–(f), (i), (n), (p), (q), (r), and (s) as may apply with respect to the employee or Member, except that, in the computation of the annuity under such section, the annuity of the employee or Member shall be at least the smaller of—

(1)

40 percent of his average pay; or

(2)

the sum obtained under such section after increasing his service of the type last performed by the period elapsing between the date of death and the date he would have become 60 years of age.

Notwithstanding the preceding sentence, the annuity payable under this subsection to the widow or widower of an employee or Member may not exceed the difference between—

(A)

the amount which would otherwise be payable to such widow or widowerunder this subsection, and

(B)

the amount of the survivor annuity payable to any former spouse of suchemployee or Member under subsection (h) of this section.

The annuity of the widow or widower commences on the day after theemployee or Member dies. This annuity and the right thereto terminate on the last day of the month before the widow or widower—

(i)

dies; or

(ii)

except as provided in subsection (k), remarries before becoming 55 years of age.

(e)

(1)

For the purposes of this subsection, “former spouse” includes a former spouse who was married to an employee or Member for less than 9 months and a former spouse of an employee or Member who completed less than 18 months of service covered by this subchapter.

(2)If an employee or Member dies after completing at least 18 months of civilian service, or an employee or Member dies after retiring under this subchapter, and is survived by a spouse or a former spouse who is the natural or adoptive parent of a surviving child of the employee or Member,that surviving child is entitled to an annuity equal to the smallest of—

(A)

60 percent of the average pay of the employee or Member divided by the number of children;

(B)

$900; or

(C)

$2,700 divided by the number of children;

subject to section 8340 of this title. If the employee or Member is not survived by a spouse or a former spouse who is the natural or adoptive parent of a surviving child of the employee or Member, that survivingchild is entitled to an annuity equal to the smallest of—

(i)

75 percent of the average pay of the employee or Member divided by the number of children;

(ii)

$1,080; or

(iii)

$3,240 divided by the number of children;

subject to section 8340 of this title.

(3)The annuity of a child under this subchapter or under the Act of May 29, 1930, as amended from and after February 28, 1948, commences on the day after the employee or Member dies, or commences or resumes on the first day of the month in which the child later becomes or again becomes a student as described by subsection (a)(3) of this section, if any lump sum paid is returned to the Fund. This annuity and the right thereto terminate on the last day of the month before the child—

(A)

becomes 18 years of age unless he is then a student as described or incapable of self-support;

(B)

becomes capable of self-support after becoming 18 years of age unless he is then such a student;

(C)

becomes 22 years of age if he is then such a student and capable of self-support;

(D)

ceases to be such a student after becoming 18 years of age unless he is then incapable of self-support; or

(E)

dies or marries;

whichever first occurs. On the death of the surviving spouse or former spouse or termination of the annuity of a child, the annuity of any otherchild or children shall be recomputed and paid as though the spouse, former spouse, or child had not survived the employee or Member.

(4)If the annuity of a child under this subchapter terminates under paragraph (3)(E) because of marriage, then, if such marriage ends, such annuity shall resume on the first day of the month in which it ends, but only if—

(A)

any lump sum paid is returned to the Fund; and

(B)

that individual is not otherwise ineligible for such annuity.

(f)If a Member heretofore or hereafter separated from the service with title to deferred annuity from the Fund hereafter dies before having established a valid claim for annuity and is survived by a spouse to whom married at the date of separation, the surviving spouse—

(1)

is entitled to an annuity equal to 55 percent of the deferred annuity of the Member commencing on the day after the Member dies and terminating on the last day of the month before the surviving spouse dies or remarries; or

(2)

may elect to receive the lump-sum credit instead of annuity if the spouse is the individual who would be entitled to the lump-sum credit and files application therefor with the Office before the award of the annuity.

Notwithstanding the preceding sentence, an annuity payable under this subsection to the surviving spouse of a Member may not exceed the difference between—

(A)

the annuity which would otherwise be payable to such surviving spouse under this subsection, and

(B)

the amount of the survivor annuity payable to any former spouse of suchMember under subsection (h) of this section.

(g)In the case of a surviving spouse whose annuity under this section is terminated because of remarriage before becoming 55 years of age, annuity at the same rate shall be restored commencing on the day the remarriage is dissolved by death, annulment, or divorce, if—

(1)

the surviving spouse elects to receive this annuity instead of a survivorbenefit to which he may be entitled, under this subchapter or another retirement system for Government employees, by reason of the remarriage; and

(2)

any lump sum paid on termination of the annuity is returned to the Fund.

(h)

(1)

Subject to paragraphs (2) through (5) of this subsection, a former spouseof a deceased employee, Member, annuitant, or former Member who was separated from the service with title to a deferred annuity under section 8338(b) of this title is entitled to a survivor annuity under this subsection, if and to the extent expressly provided for in an election under section 8339(j)(3) of this title, or in the terms of any decree of divorce or annulment or anycourt order or court-approved property settlement agreement incident to such decree.

(2)

(A)The annuity payable to a former spouse under this subsection may not exceed the difference between—

(i)

the amount applicable in the case of such former spouse, as determined under subparagraph (B) of this paragraph, and

(ii)

the amount of any annuity payable under this subsection to any other former spouse of the employee, Member, or annuitant, based on an election previously made under section 8339(j)(3) of this title, or a court order previously issued.

(B)The applicable amount, for purposes of subparagraph (A)(i) of this paragraph in the case of a former spouse, is the amount which would be applicable—

(i)

under subsection (b)(4)(A) of this section in the case of a widow or widower, if the deceased was an employee or Member who died after retirement;

(ii)

under subparagraph (A) of subsection (d) of this section in the case of a widow or widower, if the deceased was an employee orMember described in the first sentence of such subsection; or

(iii)

under subparagraph (A) of subsection (f) of this section in the case of a surviving spouse, if the deceased was a Member described in the first sentence of such subsection.

(3)The commencement and termination of an annuity payable under this subsection shall be governed by the terms of the applicable order, decree, agreement, or election, as the case may be, except that any such annuity—

(A)shall not commence before—

(i)

the day after the employee, Member, or annuitant dies, or

(ii)

the first day of the second month beginning after the date on which the Office receives written notice of the order, decree, agreement, or election, as the case may be, together with such additional information or documentation as the Office may prescribe,

whichever is later, and

(B)shall terminate—

(i)

except as provided in subsection (k), in the case of an annuity computed by reference to clause (i) or (ii) of paragraph (2)(B) of this subsection, no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies; or

(ii)

in the case of an annuity computed by reference to clause (iii) of such paragraph, no later than the last day of the month before the former spouse remarries or dies.

(4)For purposes of this subchapter, a modification in a decree, order, agreement, or election referred to in paragraph (1) of this subsection shall not be effective—

(A)

if such modification is made after the retirement or death of the employee or Member concerned, and

(B)

to the extent that such modification involves an annuity under this subsection.

(5)

For purposes of this subchapter, a decree, order, agreement, or election referred to in paragraph (1) of this subsection shall not be effective, in the case of a former spouse, to the extent that it is inconsistent with any joint designation or waiver previously executed with respect to such former spouse under section 8339(j)(1) of this title or a similar prior provision of law.

(6)

Any payment under this subsection to a person bars recovery by any other person.

(7)

As used in this subsection, “court” means any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian court.

(i)The requirement in subsections (a)(1)(A) and (a)(2)(A) of this section that the surviving spouse of an employee or Member have been married to such employee or Member for at least 9 months immediately before the employee orMember’s death in order to qualify as the widow or widower of such employee or Member shall be deemed satisfied in any case in which the employee orMember dies within the applicable 9-month period, if—

(1)

the death of the employee or Member was accidental; or

(2)

the surviving spouse of such individual had been previously married to the individual and subsequently divorced, and the aggregate time married is at least 9 months.

(k)

(1)

 [1] Subsections (b)(3)(B), (d)(ii), and (h)(3)(B)(i) (to the extent that they provide for termination of a survivor annuity because of a remarriage before age 55) shall not apply if the widow, widower, or former spouse was married for at least 30 years to the individual on whose service the survivor annuity is based.

(2)

A remarriage described in paragraph (1) shall not be taken into account for purposes of section 8339(j)(5)(B) or (C) or any other provision of this chapter which the Office may by regulation identify in order to carry out the purposes of this subsection.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 577; Pub. L. 90–83, § 1(80), Sept. 11, 1967, 81 Stat. 216; Pub. L. 91–93, title II, § 206, Oct. 20, 1969, 83 Stat. 140; Pub. L. 91–658, § 3, Jan. 8, 1971, 84 Stat. 1961; Pub. L. 92–243, § 1, Mar. 9, 1972, 86 Stat. 56; Pub. L. 92–297, § 7(4), May 16, 1972, 86 Stat. 145; Pub. L. 93–260, § 1(a), Apr. 9, 1974, 88 Stat. 76; Pub. L. 94–183, § 2(36), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 95–317, § 1(b), July 10, 1978, 92 Stat. 382; Pub. L. 95–318, § 2, July 10, 1978, 92 Stat. 384; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–598, title III, § 338(c), Nov. 6, 1978, 92 Stat. 2681; Pub. L. 96–179, § 1, Jan. 2, 1980, 93 Stat. 1299; Pub. L. 98–353, title I, § 112, July 10, 1984, 98 Stat. 343; Pub. L. 98–615, § 2(4), Nov. 8, 1984, 98 Stat. 3199; Pub. L. 99–251, title II, §§ 205–207, Feb. 27, 1986, 100 Stat. 25; Pub. L. 99–272, title XV, § 15204(a)(2), Apr. 7, 1986, 100 Stat. 335; Pub. L. 101–428, § 2(d)(7), Oct. 15, 1990, 104 Stat. 929; Pub. L. 102–378, § 2(63), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 633(a)(1)], Sept. 30, 1996, 110 Stat. 3009–314, 3009–362; Pub. L. 105–61, title V, §§ 516(a)(4), 518(a), Oct. 10, 1997, 111 Stat. 1306, 1307; Pub. L. 106–553, § 1(a)(2) [title III, § 308(h)(7)], Dec. 21, 2000, 114 Stat. 2762, 2762A–89.)

5 - 4 - 7 - 2 - 3 - 13 Lump-sum benefits; designation of beneficiary; order of precedence

(a)Subject to subsection (j) of this section, an employee or Member who—

(1)

(A)

is separated from the service for at least thirty-one consecutive days; or

(B)

is transferred to a position in which he is not subject to this subchapter, or chapter 84 of this title, and remains in such a position for at least thirty-one consecutive days;

(2)

files an application with the Office of Personnel Management for payment of the lump-sum credit;

(3)

is not reemployed in a position in which he is subject to this subchapter, or chapter 84 of this title, at the time he files the application; and

(4)

will not become eligible to receive an annuity within thirty-one days after filing the application,

is entitled to be paid the lump-sum credit. Except as provided in section 8343a or 8334(d)(2) of this title, the receipt of the payment of the lump-sum credit by the employee or Member voids all annuity rights under this subchapter based on the service on which the lump-sum credit is based, until the employee or Member is reemployed in the service subject to this subchapter. In applying this subsection to an employee or Member who becomes subject to chapter 84 (other than by an election under title III of the Federal Employees’ Retirement System Act of 1986) and who, while subject to such chapter, files an application with the Office for a payment under this subsection—

(i)

entitlement to payment of the lump-sum credit shall be determined without regard to paragraph (1) or (3) if, or to the extent that, such lump-sum credit relates to service of a type described in clauses (i) through (iii) of section 302(a)(1)(C) of the Federal Employees’ Retirement System Act of 1986; and

(ii)if, or to the extent that, the lump-sum credit so relates to service of a type referred to in clause (i), it shall (notwithstanding section 8331(8)) consist of—

(I)

the amount by which any unrefunded amount described in section 8331(8)(A) or (B) relating to such service, exceeds 1.3 percent of basic payfor such service; and

(II)

interest on the amount payable under subclause (I), computed in a manner consistent with applicable provisions of section 8331(8).

(b)

Under regulations prescribed by the Office, a present or former employee orMember may designate a beneficiary or beneficiaries for the purpose of this subchapter.

(c)

Lump-sum benefits authorized by subsections (d)–(f) of this section shall be paid to the person or persons surviving the employee or Member and alive at the date title to the payment arises in the following order of precedence, and the payment bars recovery by any other person:

First, to the beneficiary or beneficiaries designated by the employee or Member in a signed and witnessed writing received in the Office before his death. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.

Second, if there is no designated beneficiary, to the widow or widower of the employee or Member.

Third, if none of the above, to the child or children of the employee or Member and descendants of deceased children by representation.

Fourth, if none of the above, to the parents of the employee or Member or thesurvivor of them.

Fifth, if none of the above, to the duly appointed executor or administrator of the estate of the employee or Member.

Sixth, if none of the above, to such other next of kin of the employee or Member as the Office determines to be entitled under the laws of the domicile of the employee or Member at the date of his death.

For the purpose of this subsection, “child” includes a natural child and an adopted child, but does not include a stepchild.

(d)If an employee or Member dies—

(1)

without a survivor; or

(2)

with a survivor or survivors and the right of all survivors terminates before a claim for survivor annuity is filed;

or if a former employee or Member not retired dies, the lump-sum creditshall be paid.

(e)

If all annuity rights under this subchapter based on the service of a deceased employee or Member terminate before the total annuity paid equals the lump-sum credit, the difference shall be paid.

(f)

If an annuitant dies, annuity accrued and unpaid shall be paid.

(g)

Annuity accrued and unpaid on the termination, except by death, of the annuity of an annuitant or survivor annuitant shall be paid to that individual. Annuity accrued and unpaid on the death of a survivor annuitant shall be paid in the following order of precedence, and the payment bars recovery by any other person:

First, to the duly appointed executor or administrator of the estate of the survivor annuitant.

Second, if there is no executor or administrator, payment may be made, after 30 days from the date of death of the survivor annuitant, to such next of kin of the survivor annuitant as the Office determines to be entitled under the laws of the domicile of the survivor annuitant at the date of his death.

(h)

Amounts deducted and withheld from the basic pay of an employee orMember from the first day of the first month which begins after he has performed sufficient service (excluding service which the employee or Member elects to eliminate for the purpose of annuity computation under section 8339 of this title) to entitle him to the maximum annuity provided by section 8339 of this title, together with interest on the amounts at the rate of 3 percent a year compounded annually from the date of the deductions to the date of retirement or death, shall be applied toward any deposit due under section 8334 of this title, and any balance not so required is deemed a voluntary contribution for the purpose of section 8343 of this title.

(i)An employee who—

(1)

is separated from the service before July 12, 1960; and

(2)

continues in the service after July 12, 1960, without break in service of 1 workday or more;

is entitled to the benefits of subsection (h) of this section.

(j)

(1)

(A)

Payment of the lump-sum credit under subsection (a) may be made only if the spouse, if any, and any former spouse of the employee orMember are notified of the employee or Member’s application.

(B)The Office shall prescribe regulations under which the lump-sum credit shall not be paid without the consent of a spouse or former spouse of the employee or Member where the Office has received such additional information and documentation as the Office may require that—

(i)

a court order bars payment of the lump-sum credit in order to preserve the court’s ability to award an annuity under section 8341(h) or section 8345(j); or

(ii)

payment of the lump-sum credit would extinguish the entitlement of the spouse or former spouse, under a court order on file with the Office, to a survivor annuity under section 8341(h) or to any portion of an annuity under section 8345(j).

(2)

(A)

Notification of a spouse or former spouse under this subsection shall be made in accordance with such requirements as the Office shall by regulation prescribe.

(B)

Under the regulations, the Office may provide that paragraph (1)(A) of this subsection may be waived with respect to a spouse or former spouse if the employee or Member establishes to the satisfaction of the Office that the whereabouts of such spouse or former spouse cannot be determined.

(3)

The Office shall prescribe regulations under which this subsection shall be applied in any case in which the Office receives two or more such orders or decrees.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 579; Pub. L. 90–83, § 1(81), Sept. 11, 1967, 81 Stat. 217; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 97–253, title III, § 303(c), Sept. 8, 1982, 96 Stat. 794; Pub. L. 97–346, § 3(f), Oct. 15, 1982, 96 Stat. 1648; Pub. L. 98–615, § 2(5), Nov. 8, 1984, 98 Stat. 3201; Pub. L. 99–251, title II, § 208, Feb. 27, 1986, 100 Stat. 25; Pub. L. 99–335, title II, §§ 204(b)(2), 207(h), June 6, 1986, 100 Stat. 592, 596; Pub. L. 100–238, title I, § 105(b), Jan. 8, 1988, 101 Stat. 1746; Pub. L. 101–508, title VII, § 7001(b)(2)(D), Nov. 5, 1990, 104 Stat. 1388–329; Pub. L. 106–361, § 3(a), Oct. 27, 2000, 114 Stat. 1402.)

5 - 4 - 7 - 2 - 3 - 14 Additional annuities; voluntary contributions

(a)Under regulations prescribed by the Office of Personnel Management, anemployee or Member may voluntarily contribute additional sums in multiples of $25, but the total may not exceed 10 percent of his basic pay for creditableservice after July 31, 1920. The voluntary contribution account in each case is the sum of unrefunded contributions, plus interest at 3 percent a year through December 31, 1984, and thereafter at the rate computed under section 8334(e) of this title, compounded annually to—

(1)

the date of payment under subsection (d) of this section, separation, or transfer to a position in which he does not continue subject to this subchapter, whichever is earliest; or

(2)

the commencing date fixed for a deferred annuity or date of death, whichever is earlier, in the case of an individual who is separated with title to deferred annuity and does not claim the voluntary contribution account.

(b)

The voluntary contribution account is used to purchase at retirement an annuity in addition to the annuity otherwise provided. For each $100 in the voluntary contribution account, the additional annuity consists of $7, increased by 20 cents for each full year, if any, the employee or Member is over 55 years of age at the date of retirement.

(c)

A retiring employee or Member may elect a reduced additional annuity instead of the additional annuity described by subsection (b) of this section and designate in writing an individual to receive after his death an annuity of 50 percent of his reduced additional annuity. The additional annuity of the employee or Member making the election is reduced by 10 percent, and by 5 percent for each full 5 years the individual designated is younger than the retiring employee or Member. However, the total reduction may not exceed 40 percent.

(d)

A present or former employee or Member is entitled to be paid the voluntary contribution account if he files application for payment with the Office before receiving an additional annuity. An individual who has been paid the voluntary contribution account may not again deposit additional sums under this section until, after a separation from the service of more than 3 calendar days, he again becomes subject to this subchapter.

(e)

If a present or former employee or Member not retired dies, the voluntary contribution account is paid under section 8342(c) of this title. If all additional annuities or any right thereto based on the voluntary contribution account of a deceased employee or Member terminate before the total additional annuity paid equals the account, the difference is paid under section 8342(c) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 580; Pub. L. 90–83, § 1(82), Sept. 11, 1967, 81 Stat. 217; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 97–253, title III, § 303(a)(2), Sept. 8, 1982, 96 Stat. 794.)

5 - 4 - 7 - 2 - 3 - 15 Alternative forms of annuities

(a)

The Office of Personnel Management shall prescribe regulations under which any employee or Member who has a life-threatening affliction or other critical medical condition may, at the time of retiring under this subchapter (other than under section 8337 of this title), elect annuity benefits under this section instead of any other benefits under this subchapter (including any benefits under section 8341 of this title) based on the service of the employee or Member.

(b)Subject to subsection (c), the Office shall by regulation provide for such alternative forms of annuities as the Office considers appropriate, except that among the alternatives offered shall be—

(1)an alternative which provides for—

(A)

payment of the lump-sum credit to the employee or Member; and

(B)

payment of an annuity to the employee or Member for life; and

(2)in the case of an employee or Member who is married at the time of retirement, an alternative which provides for—

(A)

payment of the lump-sum credit to the employee or Member; and

(B)

payment of an annuity to the employee or Member for life, with asurvivor annuity payable for the life of a surviving spouse.

(c)

Each alternative provided for under subsection (b) shall, to the extent practicable, be designed such that the present value of the benefits provided under such alternative (including any lump-sum credit) is actuarially equivalent to the present value of the annuity which would otherwise be provided theemployee or Member under this subchapter, as computed under subsections (a)–(i), (n), (q), (r), and (s) of section 8339.

(d)An employee or Member who, at the time of retiring under this subchapter—

(1)

is married, shall be ineligible to make an election under this section unless a waiver is made under section 8339(j)(1) of this title; or

(2)

has a former spouse, shall be ineligible to make an election under this section if the former spouse is entitled to benefits under section 8341(h) or 8345(j) of this title (based on the service of the employee or Member) under the terms of a decree of divorce or annulment, or a court order or court-approved property settlement incident to any such decree, with respect to which the Office has been duly notified.

(e)

An employee or Member who is married at the time of retiring under this subchapter and who makes an election under this section may, during the 18-month period beginning on the date of retirement, make the election provided for under section 8339(o) of this title, subject to the deposit requirement thereunder.

(Added Pub. L. 99–335, title II, § 204(a), June 6, 1986, 100 Stat. 591; amended Pub. L. 101–428, § 2(d)(5), Oct. 15, 1990, 104 Stat. 929; Pub. L. 101–508, title VII, § 7001(a)(1), Nov. 5, 1990, 104 Stat. 1388–327; Pub. L. 103–66, title XI, § 11002(a), Aug. 10, 1993, 107 Stat. 409; Pub. L. 105–61, title V, § 516(a)(5), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 106–553, § 1(a)(2) [title III, § 308(h)(5)], Dec. 21, 2000, 114 Stat. 2762, 2762A–89.)

5 - 4 - 7 - 2 - 3 - 16 Annuities and pay on reemployment

(a)If an annuitant receiving annuity from the Fund, except—

(1)

a disability annuitant whose annuity is terminated because of his recovery or restoration of earning capacity;

(2)

an annuitant whose annuity, based on an involuntary separation (other than an automatic separation or an involuntary separation for cause on charges of misconduct or delinquency), is terminated under subsection (b) of this section;

(3)

an annuitant whose annuity is terminated under subsection (c) of this section; or

(4)

a Member receiving annuity from the Fund;

becomes employed in an appointive or elective position, his service on and after the date he is so employed is covered by this subchapter. Deductions for the Fund may not be withheld from his pay unless the individual elects to have such deductions withheld under subparagraph (A). An amount equal to the annuity allocable to the period of actual employment shall be deducted from his pay, except for lump-sum leave payment purposes under section 5551 of this title. The amounts so deducted shall be deposited in the Treasury of the United States to the credit of the Fund. If the annuitant serves on a full-time basis, except as President, for at least 1 year, or on a part-time basis for periods equivalent to at least 1 year of full-time service, in employment not excluding him from coverage under section 8331(1)(i) or (ii) of this title—

(A)

deductions for the Fund may be withheld from his pay (if the employee so elects), and his annuity on termination of employment is increased by an annuity computed under section 8339(a), (b), (d), (e), (h), (i), (n), (q), (r), and (s) as may apply based on the period of employment and the basic pay, before deduction, averaged during that employment; and

(B)

his lump-sum credit may not be reduced by annuity paid during that employment.

If the annuitant is receiving a reduced annuity as provided in section 8339(j) or section 8339(k)(2) of this title, the increase in annuity payable under subparagraph (A) of this subsection is reduced by 10 percent and thesurvivor annuity payable under section 8341(b) of this title is increased by 55 percent of the increase in annuity payable under such subparagraph (A), unless, at the time of claiming the increase payable under such subparagraph (A), the annuitant notifies the Office of Personnel Management in writing that he does not desire the survivor annuity to be increased. If the annuitant dies while still reemployed, the survivor annuity payable is increased as though the reemployment had otherwise terminated. If the described employment of the annuitant continues for at least 5 years, or the equivalent of 5 years in the case of part-time employment, he may elect, instead of the benefit provided by subparagraph (A) of this subsection, to deposit in the Fund (to the extent deposits or deductions have not otherwise been made) an amount computed under section 8334(c) of this title covering that employment and have his rights redetermined under this subchapter. If the annuitant dies while still reemployed and the described employment had continued for at least 5 years, or the equivalent of 5 years in the case of part-time employment, the person entitled to survivor annuity under section 8341(b) of this title may elect to deposit in the Fund and have his rights redetermined under this subchapter.

(b)

If an annuitant, other than a Member receiving an annuity from the Fund,whose annuity is based on an involuntary separation (other than an automatic separation or an involuntary separation for cause or charges on misconduct or delinquency) is reemployed in a position in which he is subject to this subchapter, payment of the annuity terminates on reemployment.

(c)

If an annuitant, other than a Member receiving an annuity from the Fund, is appointed by the President to a position in which he is subject to this subchapter, or is elected as a Member, payment of the annuity terminates on reemployment. Upon separation from such position, an individual whose annuity is so terminated is entitled to have his rights redetermined under this subchapter, except that the amount of the annuity resulting from such redetermination shall be at least equal to the amount of the terminated annuity plus any increases under section 8340 of this title occurring after the termination and before the commencement of the redetermined annuity.

(d)If a Member receiving annuity from the Fund becomes employed in an appointive or elective position, annuity payments are discontinued during the employment and resumed on termination of the employment in the amount equal to the sum of the amount of the annuity the member was receiving immediately before the commencement of the employment and the amount of the increases which would have been made in the amount of the annuity under section 8340 of this title during the period of the employment if the annuity had been payable during that period, except that—

(1)the retired Member or Member separated with title to immediate or deferred annuity, who serves at any time after separation as a Member in an appointive position in which he is subject to this subchapter, is entitled, if he so elects, to have his Member annuity computed or recomputed as if the service had been performed before his separation as a Member and the annuity as so computed or recomputed is effective—

(A)

the day Member annuity commences; or

(B)

the day after the date of separation from the appointive position;

whichever is later;

(2)if the retired Member becomes employed after December 31, 1958, in an appointive position on an intermittent-service basis—

(A)

his annuity continues during the employment and is not increased as a result of service performed during that employment;

(B)

retirement deductions may not be withheld from his pay;

(C)

an amount equal to the annuity allocable to the period of actual employment shall be deducted from his pay, except for lump-sum leave payment purposes under section 5551 of this title; and

(D)

the amounts so deducted shall be deposited in the Treasury of the United States to the credit of the Fund;

(3)

if the retired Member becomes employed after December 31, 1958, in an appointive position without pay on a full-time or substantially full-time basis, his annuity continues during the employment and is not increased as a result of service performed during the employment; and

(4)

if the retired Member takes office as Member and gives notice as provided by section 8331(2) of this title, his service as Member during that period shall be credited in determining his right to and the amount of later annuity.

(e)

This section does not apply to an individual appointed to serve as a Governor of the Board of Governors of the United States Postal Service.

(f)

Notwithstanding the provisions of subsection (a) of this section, if an annuitant receiving annuity from the Fund, except a Member receiving annuity from the Fund, becomes employed as a justice or judge of the United States, as defined by section 451 of title 28, annuity payments are discontinued during such employment and are resumed in the same amount upon resignation or retirement from regular active service as such a justice or judge.

(g)

A former employee or a former Member who becomes employed as a justice or judge of the United States, as defined by section 451 of title 28, may, at any time prior to resignation or retirement from regular active service as such a justice or judge, apply for and be paid, in accordance with section 8342(a) of this title, the amount (if any) by which the lump-sum credit exceeds the total annuity paid, notwithstanding the time limitation contained in such section for filing an application for payment.

(h)

(1)

Subject to paragraph (2) of this subsection, subsections (a), (b), (c), and (d) of this section shall not apply to any annuitant receiving an annuity from theFund while such annuitant is employed, during any period described in section 5532(f)(2) of this title (as in effect before the repeal of that section by section 651(a) of Public Law 106–65) or any portion thereof, under the administrative authority of the Administrator, Federal Aviation Administration, or the Secretary of Defense to perform duties in the operation of the air traffic control system or to train other individuals to perform such duties: Provided, however, That the amount such an annuitant may receive in pay, excluding premium pay, in any pay period when aggregated with the annuity payable during that same period shall not exceed the rate payable for level V of the Executive Schedule.

(2)

Paragraph (1) of this subsection shall apply only in the case of any annuitant receiving an annuity from the Fund who, before December 31, 1987, applied for retirement or separated from the service while being entitled to an annuity under this chapter.

(i)

(1)The Director of the Office of Personnel Management may, at the request of the head of an Executive agency—

(A)

waive the application of the preceding provisions of this section on a case-by-case basis for employees in positions for which there is exceptional difficulty in recruiting or retaining a qualified employee; or

(B)

grant authority to the head of such agency to waive the application of the preceding provisions of this section, on a case-by-case basis, for an employee serving on a temporary basis, but only if, and for so long as, the authority is necessary due to an emergency involving a direct threat to life or property or other unusual circumstances.

(2)

The Office shall prescribe regulations for the exercise of any authority under this subsection, including criteria for any exercise of authority and procedures for terminating a delegation of authority under paragraph (1)(B).

(j)

(1)

If warranted by circumstances described in subsection (i)(1)(A) or (B) (as applicable), the Director of the Administrative Office of the United States Courts shall, with respect to an employee in the judicial branch, have the same waiver authority as would be available to the Director of the Office of Personnel Management, or a duly authorized agency head, under subsection (i) with respect to an employee of an Executive agency.

(2)

Authority under this subsection may not be exercised with respect to a justice or judge of the United States, as defined in section 451 of title 28.

(k)

(1)

If warranted by circumstances described in subsection (i)(1)(A) or (B) (as applicable), an official or committee designated in paragraph (2) shall, with respect to the employees specified in the applicable subparagraph of such paragraph, have the same waiver authority as would be available to theDirector of the Office of Personnel Management, or a duly authorized agency head, under subsection (i) with respect to an employee of an Executive agency.

(2)Authority under this subsection may be exercised—

(A)

with respect to an employee of an agency in the legislative branch, by the head of such agency;

(B)

with respect to an employee of the House of Representatives, by the Committee on House Oversight of the House of Representatives; and

(C)

with respect to an employee of the Senate, by the Committee on Rules and Administration of the Senate.

(3)

Any exercise of authority under this subsection shall be in conformance with such written policies and procedures as the agency head, the Committee on House Oversight of the House of Representatives, or the Committee on Rules and Administration of the Senate (as applicable) shall prescribe, consistent with the provisions of this subsection.

(4)

For the purpose of this subsection, “agency in the legislative branch”, “employee of the House of Representatives”, “employee of the Senate”, and “congressional employee” each has the meaning given to it in section 5531 of this title.

(l)

(1)For purposes of this subsection—

(A)the term “head of an agency” means—

(i)

the head of an Executive agency, other than the Department of Defense or the Government Accountability Office;

(ii)

the head of the United States Postal Service;

(iii)

the Director of the Administrative Office of the United States Courts, with respect to employees of the judicial branch; and

(iv)

any employing authority described under subsection (k)(2), other than the Government Accountability Office; and

(B)

the term “limited time appointee” means an annuitant appointed under a temporary appointment limited to 1 year or less.

(2)The head of an agency may waive the application of subsection (a) or (b) with respect to any annuitant who is employed in such agency as a limited time appointee, if the head of the agency determines that the employment of the annuitant is necessary to—

(A)

fulfill functions critical to the mission of the agency, or any component of that agency;

(B)

assist in the implementation or oversight of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) or the Troubled Asset Relief Program under title I of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5211 et seq.);

(C)

assist in the development, management, or oversight of agency procurement actions;

(D)

assist the Inspector General for that agency in the performance of the mission of that Inspector General;

(E)

promote appropriate training or mentoring programs of employees;

(F)

assist in the recruitment or retention of employees; or

(G)

respond to an emergency involving a direct threat to life of property or other unusual circumstances.

(3)The head of an agency may not waive the application of subsection (a) or (b) with respect to an annuitant—

(A)

for more than 520 hours of service performed by that annuitantduring the period ending 6 months following the individual’s annuity commencing date;

(B)

for more than 1040 hours of service performed by that annuitantduring any 12-month period; or

(C)

for more than a total of 3120 hours of service performed by that annuitant.

(4)

(A)

The total number of annuitants to whom a waiver by the head of an agency under this subsection or section 8468(i) applies may not exceed 2.5 percent of the total number of full-time employees of that agency.

(B)If the total number of annuitants to whom a waiver by the head of an agency under this subsection or section 8468(i) applies exceeds 1 percent of the total number of full-time employees of that agency, the head of that agency shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Office of Personnel Management—

(i)

a report with an explanation that justifies the need for the waivers in excess of that percentage; and

(ii)

not later than 180 days after submitting the report under clause (i), a succession plan.

(5)

(A)

The Director of the Office of Personnel Management may promulgate regulations providing for the administration of this subsection.

(B)Any regulations promulgated under subparagraph (A) may—

(i)

provide standards for the maintenance and form of necessary records of employment under this subsection;

(ii)

to the extent not otherwise expressly prohibited by law, require employing agencies to provide records of such employment to the Office of Personnel Management or other employing agencies as necessary to ensure compliance with paragraph (3);

(iii)

authorize other administratively convenient periods substantially equivalent to 12 months, such as 26 pay periods, to be used in determining compliance with paragraph (3)(B);

(iv)

include such other administrative requirements as the Directorof the Office of Personnel Management may find appropriate to provide for the effective operation of, or to ensure compliance with, this subsection; and

(v)

encourage the training and mentoring of employees by any limited time appointee employed under this subsection.

(6)

(A)

Any hours of training or mentoring of employees by any limited time appointee employed under this subsection shall not be included in the hours of service performed for purposes of paragraph (3), but those hours of training or mentoring may not exceed 520 hours.

(B)

If the primary service performed by any limited time appointeeemployed under this subsection is training or mentoring of employees,the hours of that service shall be included in the hours of service performed for purposes of paragraph (3).

(7)

The authority of the head of an agency under this subsection to waive the application of subsection (a) or (b) shall terminate on December 31, 2024.

(m)

(1)

For the purpose of subsections (i) through (l), “Executive agency” shall not include the Government Accountability Office.

(2)

An employee as to whom a waiver under subsection (i), (j), (k), or (l) is in effect shall not be considered an employee for purposes of this chapter or chapter 84 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 581; Pub. L. 90–83, § 1(83), Sept. 11, 1967, 81 Stat. 217; Pub. L. 91–375, § 6(c)(20), Aug. 12, 1970, 84 Stat. 776; Pub. L. 91–658, § 4, Jan. 8, 1971, 84 Stat. 1962; Pub. L. 92–297, § 7(5), May 16, 1972, 86 Stat. 145; Pub. L. 94–397, § 1(a)–(c), Sept. 3, 1976, 90 Stat. 1202, 1203; Pub. L. 95–454, title IX, § 906(a)(14), Oct. 13, 1978, 92 Stat. 1226; Pub. L. 95–598, title III, § 338(d), Nov. 6, 1978, 92 Stat. 2681; Pub. L. 96–179, § 4, Jan. 2, 1980, 93 Stat. 1299; Pub. L. 96–504, § 1, Dec. 5, 1980, 94 Stat. 2741; Pub. L. 97–141, § 5(a), Dec. 29, 1981, 95 Stat. 1719; Pub. L. 97–276, § 151(g), Oct. 2, 1982, 96 Stat. 1202; Pub. L. 97–346, § 3(j)(2), Oct. 15, 1982, 96 Stat. 1649; Pub. L. 98–353, title I, § 112, July 10, 1984, 98 Stat. 343; Pub. L. 98–396, title I, Aug. 22, 1984, 98 Stat. 1403; Pub. L. 98–525, title XV, § 1537(e), Oct. 19, 1984, 98 Stat. 2636; Pub. L. 99–88, title I, § 100, Aug. 15, 1985, 99 Stat. 351; Pub. L. 99–500, § 101(l), Oct. 18, 1986, 100 Stat. 1783–308, and Pub. L. 99–591, § 101(l), Oct. 30, 1986, 100 Stat. 3341–308; Pub. L. 100–202, §§ 101(l) [title I], 106, Dec. 22, 1987, 101 Stat. 1329–358, 1329–362, 1329–433; Pub. L. 100–457, title I, Sept. 30, 1988, 102 Stat. 2129; Pub. L. 101–428, § 2(d)(8), Oct. 15, 1990, 104 Stat. 929; Pub. L. 101–509, title V, § 529 [title I, § 108(b)], Nov. 5, 1990, 104 Stat. 1427, 1450; Pub. L. 101–510, div. A, title XII, § 1206(j)(2), Nov. 5, 1990, 104 Stat. 1664; Pub. L. 102–190, div. A, title VI, § 655(b), Dec. 5, 1991, 105 Stat. 1391; Pub. L. 102–378, § 8(a), Oct. 2, 1992, 106 Stat. 1359; Pub. L. 105–55, title I, § 107, Oct. 7, 1997, 111 Stat. 1184; Pub. L. 105–61, title V, § 516(a)(6), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(5)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293; Pub. L. 106–553, § 1(a)(2) [title III, § 308(h)(8)], Dec. 21, 2000, 114 Stat. 2762, 2762A–89; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 111–84, div. A, title XI, § 1122(a), Oct. 28, 2009, 123 Stat. 2505; Pub. L. 111–383, div. A, title X, § 1075(a)(1), Jan. 7, 2011, 124 Stat. 4368; Pub. L. 113–291, div. A, title XI, § 1107(a), Dec. 19, 2014, 128 Stat. 3527; Pub. L. 116–92, div. A, title XI, § 1117(a), Dec. 20, 2019, 133 Stat. 1605.)

5 - 4 - 7 - 2 - 3 - 17 Payment of benefits; commencement, termination, and waiver of annuity

(a)

Each annuity is stated as an annual amount, one-twelfth of which, rounded to the next lowest dollar, constitutes the monthly rate payable on the first business day of the month after the month or other period for which it has accrued.

(b)

(1)Except as otherwise provided—

(A)an annuity of an employee or Member commences on the first day of the month after—

(i)

separation from the service; or

(ii)

pay ceases and the service and age requirements for title to annuity are met; and

(B)

any other annuity payable from the Fund commences on the first day of the month after the occurrence of the event on which payment thereof is based.

(2)The annuity of—

(A)

an employee involuntarily separated from service, except by removal for cause on charges of misconduct or delinquency; and

(B)

an employee or Member retiring under section 8337 of this title due to a disability;

shall commence on the day after separation from the service or the day after pay ceases and the service and age or disability requirements for title to annuity are met.

(c)

The annuity of a retired employee or Member terminates on the day death or other terminating event provided by this subchapter occurs. The annuity of asurvivor terminates on the last day of the month before death or other terminating event occurs.

(d)

An individual entitled to annuity from the Fund may decline to accept all or any part of the annuity by a waiver signed and filed with the Office of Personnel Management. The waiver may be revoked in writing at any time. Payment of the annuity waived may not be made for the period during which the waiver was in effect.

(e)

(1)

Payment due a minor, or an individual mentally incompetent or under other legal disability, may be made to the person (including an organization) who is constituted guardian or other fiduciary by the law of the State of residence of the claimant or is otherwise legally vested with the care of the claimant or his estate. If a guardian or other fiduciary of the individual under legal disability has not been appointed under the law of the State of residence of the claimant, payment may be made to any person (including an organization) who, in the judgment of the Office, is responsible for the care of the claimant and may appropriately receive such payments on behalf of the claimant, and the payment bars recovery by any other person.

(2)

If the Office determines that direct payment of a benefit to an individual mentally incompetent or under other legal disability would cause substantial harm to the individual, the Office may defer or suspend direct payment of the benefit until such time as the appointment of a representative payee is made. The Office shall resume payment as soon as practicable, including all amounts due.

(f)The Office may not authorize a person to receive payments on behalf of a minor or individual of legal disability under subsection (e) if that person has been convicted of a violation of—

(1)

section 8345a or 8466a;

(2)

section 208 or 1632 of the Social Security Act (42 U.S.C. 408, 1383a); or

(3)

section 6101 of title 38.

(g)

The Office shall prescribe regulations to provide that the amount of any monthly annuity payable under this section accruing for any month and which is computed with regard to service that includes any service referred to in section 8332(b)(6) performed by an individual prior to January 1, 1969, shall be reduced by the portion of any benefits under any State retirement system to which such individual is entitled (or on proper application would be entitled) for such month which is attributable to such service performed by such individual before such date.

(h)

An individual entitled to an annuity from the Fund may make allotments or assignments of amounts from his annuity for such purposes as the Office of Personnel Management in its sole discretion considers appropriate.

(i)

(1)

No payment shall be made from the Fund unless an application for benefits based on the service of an employee or Member is received in the Office of Personnel Management before the one hundred and fifteenth anniversary of his birth.

(2)

Notwithstanding paragraph (1) of this subsection, after the death of an employee, Member, or annuitant, no benefit based on his service shall be paid from the Fund unless an application therefor is received in the Office of Personnel Management within 30 years after the death or other event which gives rise to title to the benefit.

(j)

(1)Payments under this subchapter which would otherwise be made to an employee, Member, or annuitant based on service of that individual shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of—

(A)

any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation; or

(B)

any court order or other similar process in the nature of garnishment for the enforcement of a judgment rendered against such employee,Member, or annuitant, for physically, sexually, or emotionally abusing achild.

In the event that the Office is served with more than 1 decree, order, or other legal process with respect to the same moneys due or payable to any individual, such moneys shall be available to satisfy such processes on a first-come, first-served basis, with any such process being satisfied out of such moneys as remain after the satisfaction of all such processes which have been previously served.

(2)

Paragraph (1) shall only apply to payments made by the Office under this subchapter after the date of receipt in the Office of written notice of such decree, order, other legal process, or agreement, and such additional information and documentation as the Office may prescribe.

(3)For the purpose of this subsection—

(A)

the term “court” means any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian court;

(B)

the term “judgment rendered for physically, sexually, or emotionally abusing a child” means any legal claim perfected through a final enforceable judgment, which claim is based in whole or in part upon the physical, sexual, or emotional abuse of a child, whether or not that abuse is accompanied by other actionable wrongdoing, such as sexual exploitation or gross negligence; and

(C)

the term “child” means an individual under 18 years of age.

(k)

(1)

The Office shall, in accordance with this subsection, enter into an agreement with any State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the Office shall withhold State income tax in the case of the monthly annuity of anyannuitant who voluntarily requests, in writing, such withholding. The amounts withheld during any calendar quarter shall be held in the Fund and disbursed to the States during the month following that calendar quarter.

(2)

An annuitant may have in effect at any time only one request for withholding under this subsection, and an annuitant may not have more than two such requests in effect during any one calendar year.

(3)

Subject to paragraph (2) of this subsection, an annuitant may change the State designated by that annuitant for purposes of having withholdings made, and may request that the withholdings be remitted in accordance with such change. An annuitant also may revoke any request of thatannuitant for withholding. Any change in the State designated or revocation is effective on the first day of the month after the month in which the request or the revocation is processed by the Office, but in no event later than on the first day of the second month beginning after the day on which such request or revocation is received by the Office.

(4)

This subsection does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on employers generally, or which subjects the United States or any annuitant to a penalty or liability because of this subsection. The Office may not accept pay from a State for services performed in withholding State income taxes from annuities. Any amount erroneously withheld from an annuity and paid to a State by the Office shall be repaid by the State in accordance with regulations issued by the Office.

(5)

For the purpose of this subsection, “State” means a State, the District of Columbia, or any territory or possession of the United States.

(l)

Transfers of contributions and deposits authorized by section 408(a)(3) of the Foreign Service Act of 1980 shall be deemed to be a complete and final payment of benefits under this chapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 582; Pub. L. 93–273, § 1, Apr. 26, 1974, 88 Stat. 93; Pub. L. 94–126, § 1(c), Nov. 12, 1975, 89 Stat. 679; Pub. L. 94–166, § 1, Dec. 23, 1975, 89 Stat. 1002; Pub. L. 94–183, § 1, Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–366, § 1(a), Sept. 15, 1978, 92 Stat. 600; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 97–35, title XVII, § 1705(a), Aug. 13, 1981, 95 Stat. 758; Pub. L. 97–253, title III, §§ 304(b), 305(a), Sept. 8, 1982, 96 Stat. 795; Pub. L. 98–615, § 2(6), Nov. 8, 1984, 98 Stat. 3202; Pub. L. 99–251, title III, § 305(a), Feb. 27, 1986, 100 Stat. 26; Pub. L. 101–246, title I, § 141(b), Feb. 16, 1990, 104 Stat. 35; Pub. L. 103–358, § 2(a), Oct. 14, 1994, 108 Stat. 3420; Pub. L. 116–126, § 2(c)(1), (d)(1), Mar. 18, 2020, 134 Stat. 175, 176.)

Embezzlement or conversion of payments

(a)Embezzling and Conversion Generally.—

(1)In general.—

It shall be unlawful for a representative payee to embezzle or in any manner convert all or any part of the amounts received from payments received as a representative payee to a use other than for the use and benefit of the minor or individual on whose behalf such payments were received.

(2)Revocation.—If the Office determines that a representative payee has embezzled or converted payments as described in paragraph (1), the Office shall promptly—

(A)

revoke the certification for payment of benefits to the representative payee; and

(B)certify payment—

(i)

to another representative payee; or

(ii)

if the interest of the individual under this title would be served thereby, to the individual.

(b)Penalty.—

Any person who violates subsection (a)(1) shall be fined under title 18, imprisoned for not more than 5 years, or both.

(Added Pub. L. 116–126, § 2(b)(1), Mar. 18, 2020, 134 Stat. 174.)

5 - 4 - 7 - 2 - 3 - 18 Exemption from legal process; recovery of payments

(a)

The money mentioned by this subchapter is not assignable, either in law or equity, except under the provisions of subsections (h) and (j) of section 8345 of this title, or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws.

(b)

Recovery of payments under this subchapter may not be made from an individual when, in the judgment of the Office of Personnel Management, the individual is without fault and recovery would be against equity and good conscience. Withholding or recovery of money mentioned by this subchapter on account of a certification or payment made by a former employee of the United States in the discharge of his official duties may be made only if the head of the agency on behalf of which the certification or payment was made certifies to the Office that the certification or payment involved fraud on the part of the formeremployee.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 583; Pub. L. 94–166, § 2, Dec. 23, 1975, 89 Stat. 1002; Pub. L. 95–366, § 1(b), Sept. 15, 1978, 92 Stat. 600; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 7 - 2 - 3 - 19 Administration; regulations

(a)

The Office of Personnel Management shall administer this subchapter. Except as otherwise specifically provided herein, the Office shall perform, or cause to be performed, such acts and prescribe such regulations as are necessary and proper to carry out this subchapter.

(b)

Applications under this subchapter shall be in such form as the Office prescribes. Agencies shall support the applications by such certificates as the Office considers necessary to the determination of the rights of applicants. The Office shall adjudicate all claims under this subchapter.

(c)

The Office shall determine questions of disability and dependency arising under this subchapter. Except to the extent provided under subsection (d) of this section, the decisions of the Office concerning these matters are final and conclusive and are not subject to review. The Office may direct at any time such medical or other examinations as it considers necessary to determine the facts concerning disability or dependency of an individual receiving or applying for annuity under this subchapter. The Office may suspend or deny annuity for failure to submit to examination.

(d)

(1)

Subject to paragraph (2) of this subsection, an administrative action or order affecting the rights or interests of an individual or of the United States under this subchapter may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.

(2)

In the case of any individual found by the Office to be disabled in whole or in part on the basis of the individual’s mental condition, and that finding was made pursuant to an application by an agency for purposes of disability retirement under section 8337(a) of this title, the procedures under section 7701 of this title shall apply and the decision of the Board shall be subject to judicial review under section 7703 of this title.

(e)

The Office shall fix the fees for examinations made under this subchapter by physicians or surgeons who are not medical officers of the United States. The fees and reasonable traveling and other expenses incurred in connection with the examinations are paid from appropriations for the cost of administering this subchapter.

(f)

The Office shall select three actuaries, to be known as the Board of Actuaries of the Civil Service Retirement System. The Office shall fix the pay of themembers of the Board, except members otherwise in the employ of the United States. The Board shall report annually on the actuarial status of the System and furnish its advice and opinion on matters referred to it by the Office. The Board may recommend to the Office and to Congress such changes as in the Board’s judgment are necessary to protect the public interest and maintain the System on a sound financial basis. The Office shall keep, or cause to be kept, such records as it considers necessary for making periodic actuarial valuations of the System. The Board shall make actuarial valuations every 5 years, or oftener if considered necessary by the Office.

(g)

The Office may exclude from the operation of this subchapter an employeeor group of employees in or under an Executive agency whose employment is temporary or intermittent. However, the Office may not exclude any employeewho occupies a position on a part-time career employment basis (as defined in section 3401(2) of this title).

(h)

The Office, on recommendation by the Mayor of the District of Columbia, may exclude from the operation of this subchapter an individual or group of individuals employed by the government of the District of Columbia whose employment is temporary or intermittent.

(i)

The Architect of the Capitol may exclude from the operation of this subchapter an employee under the Office of the Architect of the Capitol whose employment is temporary or of uncertain duration.

(j)

The Librarian of Congress may exclude from the operation of this subchapter an employee under the Library of Congress whose employment is temporary or of uncertain duration.

(k)

The Secretary of Agriculture shall prescribe regulations to effect the application and operation of this subchapter to an individual named by section 8331(1)(F) of this title.

(l)

The Director or Acting Director of the Botanic Garden may exclude from the operation of this subchapter an employee under the Botanic Garden whose employment is temporary or of uncertain duration.

(m)Notwithstanding any other provision of law, for the purpose of ensuring the accuracy of information used in the administration of this chapter, at the request of the Director of the Office of Personnel Management—

(1)

the Secretary of Defense or the Secretary’s designee shall provide information on retired or retainer pay provided under title 10;

(2)

the Secretary of Veterans Affairs shall provide information on pensions or compensation provided under title 38;

(3)

the Commissioner of Social Security or the Secretary’s [1] designee shall provide information contained in the records of the Social Security Administration; and

(4)

the Secretary of Labor or the Secretary’s designee shall provide information on benefits paid under subchapter I of chapter 81 of this title.

The Director shall request only such information as the Director determines is necessary. The Director, in consultation with the officials from whom information is requested, shall establish, by regulation and otherwise, such safeguards as are necessary to ensure that information made available under this subsection is used only for the purpose authorized.

(n)

(1)Notwithstanding any other provision of this subchapter, the Director of Central Intelligence shall, in a manner consistent with the administration of this subchapter by the Office, and to the extent considered appropriate by the Director of Central Intelligence—

(A)

determine entitlement to benefits under this subchapter based on the service of employees of the Central Intelligence Agency;

(B)

maintain records relating to the service of such employees;

(C)

compute benefits under this subchapter based on the service of such employees;

(D)

collect deposits to the Fund made by such employees, their spouses, and their former spouses;

(E)

authorize and direct disbursements from the Fund to the extent based on service of such employees; and

(F)

perform such other functions under this subchapter as the Director of Central Intelligence, in consultation with the Director of the Office of Personnel Management, determines to be appropriate.

(2)

The Director of the Office of Personnel Management shall furnish such information and, on a reimbursable basis, such services to the Director of Central Intelligence as the Director of Central Intelligence requests to carry out paragraph (1) of this subsection.

(3)

(A)

The Director of Central Intelligence, in consultation with the Directorof the Office of Personnel Management, shall by regulation prescribe appropriate procedures to carry out this subsection.

(B)

The regulations shall provide procedures for the Director of the Office of Personnel Management to inspect and audit disbursements from the Civil Service Retirement and Disability Fund under this subchapter.

(C)

The Director of Central Intelligence shall submit the regulations prescribed under subparagraph (A) to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives before the regulations take effect.

(4)

(A)

Section 201(c) of the Central Intelligence Agency Retirement Act shall apply in the administration of this subchapter to the extent that the provisions of this subchapter are administered under this subsection.

(B)

Notwithstanding subparagraph (A) of this paragraph, section 8347(d) of this title shall apply with respect to employees of the Central Intelligence Agency who are subject to the Civil Service Retirement System.

(o)

Any provision of law outside of this subchapter which provides coverage, service credit, or any other benefit under this subchapter to any individuals who (based on their being employed by an entity other than the Government) would not otherwise be eligible for any such coverage, credit, or benefit, shall not apply with respect to any individual appointed, transferred, or otherwise commencing that type of employment on or after October 1, 1988.

(p)

The Director of the Administrative Office of the United States Courts may exclude from the operation of this subchapter an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, whose employment is temporary or of uncertain duration.

(q)

(1)Under regulations prescribed by the Office of Personnel Management, anemployee who—

(A)

has not previously made an election under this subsection or had an opportunity to make an election under this paragraph; and

(B)

moves, without a break in service of more than 1 year, to employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, respectively, described in section 2105(c),

shall be given the opportunity to elect irrevocably, within 30 days after such move, to remain covered as an employee under this subchapter during any employment described in section 2105(c) after such move.

(2)Under regulations prescribed by the Office of Personnel Management, anemployee of a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in section 2105(c), who—

(A)

has not previously made an election under this subsection or had an opportunity to make an election under this paragraph;

(B)

is a participant in a retirement system established for employeesdescribed in section 2105(c);

(C)

moves, without a break in service of more than 1 year, to a position that is not described in section 2105(c); and

(D)

is excluded from coverage under chapter 84 by section 8402(b),

shall be given the opportunity to elect irrevocably, within 30 days after such move, to remain covered, during any subsequent employment as an employee as defined in section 2105(a) or section 2105(c), by the retirement system applicable to such employee’s current or most recent employment described in section 2105(c) rather than be subject to this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 583; Pub. L. 90–83, § 1(84), Sept. 11, 1967, 81 Stat. 218; Pub. L. 90–623, § 1(22), Oct. 22, 1968, 82 Stat. 1313; Pub. L. 95–437, § 4(a), Oct. 10, 1978, 92 Stat. 1058; Pub. L. 95–454, title IX, § 906(a)(2), (3), (9), (c)(2)(F), Oct. 13, 1978, 92 Stat. 1224, 1225, 1227; Pub. L. 96–54, § 2(a)(50), Aug. 14, 1979, 93 Stat. 384; Pub. L. 96–499, title IV, § 404(b), Dec. 5, 1980, 94 Stat. 2606; Pub. L. 96–500, § 1, Dec. 5, 1980, 94 Stat. 2696; Pub. L. 97–253, title III, § 302(b), Sept. 8, 1982, 96 Stat. 793; Pub. L. 99–335, title II, § 207(i), June 6, 1986, 100 Stat. 596; Pub. L. 100–238, title I, § 108(a)(1), Jan. 8, 1988, 101 Stat. 1747; Pub. L. 101–474, § 5(n), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 101–508, title VII, § 7202(j)(2), Nov. 5, 1990, 104 Stat. 1388–337; Pub. L. 102–54, § 13(b)(5), June 13, 1991, 105 Stat. 274; Pub. L. 102–378, § 2(64), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 102–496, title VIII, § 803(c), Oct. 24, 1992, 106 Stat. 3253; Pub. L. 103–296, title I, § 108(e)(5), Aug. 15, 1994, 108 Stat. 1486; Pub. L. 104–106, div. A, title X, § 1043(a)(1), Feb. 10, 1996, 110 Stat. 434; Pub. L. 107–107, div. A, title XI, § 1131(a), Dec. 28, 2001, 115 Stat. 1242.)

5 - 4 - 7 - 2 - 3 - 20 Civil Service Retirement and Disability Fund

(a)There is a Civil Service Retirement and Disability Fund. The Fund—

(1)is appropriated for the payment of—

(A)

benefits as provided by this subchapter or by the provisions of chapter 84 of this title which relate to benefits payable out of the Fund;and

(B)

administrative expenses incurred by the Office of Personnel Management in placing in effect each annuity adjustment granted under section 8340 or 8462 of this title, in administering survivor annuities and elections providing therefor under sections 8339 and 8341 of this title or subchapters II and IV of chapter 84 of this title, in administering alternative forms of annuities under sections 8343a and 8420a (and related provisions of law), in making an allotment or assignment made by an individual under section 8345(h) or 8465(b) of this title, in administering fraud prevention under sections 8345, 8345a, 8466, and 8466a of this title, and in withholding taxes pursuant to section 3405 of title 26 or section 8345(k) or 8469 of this title;

(2)

is made available, subject to such annual limitation as the Congress may prescribe, for any expenses incurred by the Office in connection with the administration of this chapter, chapter 84 of this title, and other retirement and annuity statutes; and

(3)

is made available, subject to such annual limitation as the Congress may prescribe, for any expenses incurred by the Merit Systems Protection Boardin the administration of appeals authorized under sections 8347(d) and 8461(e) of this title.

(b)

The Secretary of the Treasury may accept and credit to the Fund money received in the form of a donation, gift, legacy, or bequest, or otherwise contributed for the benefit of civil-service employees generally.

(c)

The Secretary shall immediately invest in interest-bearing securities of the United States such currently available portions of the Fund as are not immediately required for payments from the Fund. The income derived from these investments constitutes a part of the Fund.

(d)

The purposes for which obligations of the United States may be issued under chapter 31 of title 31 are extended to authorize the issuance at par of public-debt obligations for purchase by the Fund. The obligations issued for purchase by the Fund shall have maturities fixed with due regard for the needs of the Fund and bear interest at a rate equal to the average market yield computed as of the end of the calendar month next preceding the date of the issue, borne by all marketable interest-bearing obligations of the United States then forming a part of the public debt which are not due or callable until after the expiration of 4 years from the end of that calendar month. If the average market yield is not a multiple of ⅛ of 1 percent, the rate of interest on the obligations shall be the multiple of ⅛ of 1 percent nearest the average market yield.

(e)

The Secretary may purchase other interest-bearing obligations of the United States, or obligations guaranteed as to both principal and interest by the United States, on original issue or at the market price only if he determines that the purchases are in the public interest.

(f)Any statute which authorizes—

(1)

new or liberalized benefits payable from the Fund, including annuity increases other than under section 8340 of this title;

(2)

extension of the coverage of this subchapter to new groups of employees; or

(3)

increases in pay on which benefits are computed;

is deemed to authorize appropriations to the Fund to finance the unfunded liability created by that statute, in 30 equal annual installments with interest computed at the rate used in the then most recent valuation of the CivilService Retirement System and with the first payment thereof due as of the end of the fiscal year in which each new or liberalized benefit, extension of coverage, or increase in pay is effective.

(g)

At the end of each fiscal year, the Office shall notify the Secretary of the Treasury of the amount equivalent to (1) interest on the unfunded liabilitycomputed for that year at the interest rate used in the then most recent valuation of the System, and (2) that portion of disbursement for annuities for that year which the Office estimates is attributable to credit allowed for military service, less an amount determined by the Office to be appropriate to reflect the value of the deposits made to the credit of the Fund under section 8334(j) of this title. Before closing the accounts for each fiscal year, the Secretary shall credit to the Fund, as a Government contribution, out of any money in the Treasury of the United States not otherwise appropriated, the following percentages of such amounts: 10 percent for 1971; 20 percent for 1972; 30 percent for 1973; 40 percent for 1974; 50 percent for 1975; 60 percent for 1976; 70 percent for 1977; 80 percent for 1978; 90 percent for 1979; and 100 percent for 1980 and for each fiscal year thereafter.

(h)

(1)In this subsection, the term “Postal surplus or supplemental liability” means the estimated difference, as determined by the Office, between—

(A)

the actuarial present value of all future benefits payable from the Fund under this subchapter to current or former employees of the United States Postal Service and attributable to civilian employment with the United States Postal Service; and

(B)the sum of—

(i)

the actuarial present value of deductions to be withheld from the future basic pay of employees of the United States Postal Servicecurrently subject to this subchapter under section 8334;

(ii)

that portion of the Fund balance, as of the date the Postal surplus or supplemental liability is determined, attributable to payments to the Fund by the United States Postal Service and its employees,minus benefit payments attributable to civilian employment with the United States Postal Service, plus the earnings on such amounts while in the Fund; and

(iii)

any other appropriate amount, as determined by the Office in accordance with generally accepted actuarial practices and principles.

(2)

(A)

Not later than June 15, 2007, the Office shall determine the Postal surplus or supplemental liability, as of September 30, 2006. If that result is a surplus, the amount of the surplus shall be transferred to the PostalService Retiree Health Benefits Fund established under section 8909a by June 30, 2007.

(B)

The Office shall redetermine the Postal surplus or supplemental liability as of the close of the fiscal year, for each fiscal year beginning after September 30, 2007, through the fiscal year ending September 30, 2038. If the result is a surplus, that amount shall remain in the Fund until distribution is authorized under subparagraph (C). Beginning June 15, 2017, if the result is a supplemental liability, the Office shall establish an amortization schedule, including a series of annual installments commencing on September 30 of the subsequent fiscal year, which provides for the liquidation of such liability by September 30, 2043.

(C)

As of the close of the fiscal years ending September 30, 2015, 2025, 2035, and 2039, if the result is a surplus, that amount shall be transferred to the Postal Service Retiree Health Benefits Fund, and any prior amortization schedule for payments shall be terminated.

(D)

Amortization schedules established under this paragraph shall be set in accordance with generally accepted actuarial practices and principles, with interest computed at the rate used in the most recent valuation of the Civil Service Retirement System.

(E)

The United States Postal Service shall pay the amounts so determined to the Office, with payments due not later than the date scheduled by the Office.

(3)

Notwithstanding any other provision of law, in computing the amount of any payment under any other subsection of this section that is based upon the amount of the unfunded liability, such payment shall be computed disregarding that portion of the unfunded liability that the Office determines will be liquidated by payments under this subsection.

(i)

(1)

Notwithstanding any other provision of law, the Panama Canal Commission shall be liable for that portion of any estimated increase in the unfunded liability of the fund which is attributable to any benefits payable from the Fund to or on behalf of employees and their survivors to the extent attributable to the amendments made by sections 1241 and 1242, and the provisions of sections 1231(b) and 1243(a)(1), of the Panama Canal Act of 1979, and the amendments made by section 3506 of the Panama Canal Commission Authorization Act for Fiscal Year 1991.

(2)

The estimated increase in the unfunded liability referred to in paragraph (1) of this subsection shall be determined by the Office of Personnel Management. The Panama Canal Commission shall pay to the Fund fromfunds available to it for that purpose the amount so determined in annual installments with interest computed at the rate used in the most recent valuation of the Civil Service Retirement System.

(j)

(1)

Notwithstanding subsection (c) of this section, the Secretary of the Treasury may suspend additional investment of amounts in the Fund if such additional investment could not be made without causing the public debt of the United States to exceed the public debt limit.

(2)

Any amounts in the Fund which, solely by reason of the public debt limit, are not invested shall be invested by the Secretary of the Treasury as soon as such investments can be made without exceeding the public debt limit.

(3)

Upon expiration of the debt issuance suspension period, the Secretary of the Treasury shall immediately issue to the Fund obligations under chapter 31 of title 31 that (notwithstanding subsection (d) of this section) bear such interest rates and maturity dates as are necessary to ensure that, after such obligations are issued, the holdings of the Fund will replicate to the maximum extent practicable the obligations that would then be held by theFund if the suspension of investment under paragraph (1) of this subsection, and any redemption or disinvestment under subsection (k) of this section for the purpose described in such paragraph, during such period had not occurred.

(4)On the first normal interest payment date after the expiration of any debt issuance suspension period, the Secretary of the Treasury shall pay to theFund, from amounts in the general fund of the Treasury of the United States not otherwise appropriated, an amount determined by the Secretary to be equal to the excess of—

(A)the net amount of interest that would have been earned by the Fundduring such debt issuance suspension period if—

(i)

amounts in the Fund that were not invested during such debt issuance suspension period solely by reason of the public debt limit had been invested, and

(ii)

redemptions and disinvestments with respect to the Fund which occurred during such debt issuance suspension period solely by reason of the public debt limit had not occurred, over

(B)

the net amount of interest actually earned by the Fund during such debt issuance suspension period.

(5)For purposes of this subsection and subsections (k) and (l) of this section—

(A)

the term “public debt limit” means the limitation imposed by section 3101(b) of title 31; and

(B)

the term “debt issuance suspension period” means any period for which the Secretary of the Treasury determines for purposes of this subsection that the issuance of obligations of the United States may not be made without exceeding the public debt limit.

(k)

(1)

Subject to paragraph (2) of this subsection, the Secretary of the Treasury may sell or redeem securities, obligations, or other invested assets of the Fund before maturity in order to prevent the public debt of the United States from exceeding the public debt limit.

(2)

The Secretary may sell or redeem securities, obligations, or other invested assets of the Fund under paragraph (1) of this subsection only during a debt issuance suspension period, and only to the extent necessary to obtain any amount of funds not exceeding the amount equal to the total amount of the payments authorized to be made from the Fund under the provisions of this subchapter or chapter 84 of this title or related provisions of law during such period. A sale or redemption may be made under this subsection even if, before the sale or redemption, there is a sufficient amount in the Fund to ensure that such payments are made in a timely manner.

(l)

(1)

The Secretary of the Treasury shall report to Congress on the operation and status of the Fund during each debt issuance suspension period for which the Secretary is required to take action under paragraph (3) or (4) of subsection (j) of this section. The report shall be submitted as soon as possible after the expiration of such period, but not later than the date that is 30 days after the first normal interest payment date occurring after the expiration of such period.

(2)

Whenever the Secretary of the Treasury determines that, by reason of the public debt limit, the Secretary will be unable to fully comply with the requirements of subsection (c) of this section, the Secretary shall immediately notify Congress of the determination. The notification shall be made in writing.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 584; Pub. L. 90–83, § 1(85), Sept. 11, 1967, 81 Stat. 218; Pub. L. 91–93, title I, § 103(a), Oct. 20, 1969, 83 Stat. 137; Pub. L. 93–349, § 1, July 12, 1974, 88 Stat. 354; Pub. L. 94–183, § 2(37), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–70, title I, § 1244, Sept. 27, 1979, 93 Stat. 474; Pub. L. 97–253, title III, § 306(f), Sept. 8, 1982, 96 Stat. 797; Pub. L. 97–346, § 3(g), Oct. 15, 1982, 96 Stat. 1648; Pub. L. 98–216, § 3(a)(5), Feb. 14, 1984, 98 Stat. 6; Pub. L. 98–615, § 2(7), Nov. 8, 1984, 98 Stat. 3202; Pub. L. 99–335, title II, § 207(j), June 6, 1986, 100 Stat. 597; Pub. L. 99–509, title VI, § 6002, Oct. 21, 1986, 100 Stat. 1931; Pub. L. 100–203, title V, § 5428(d), Dec. 22, 1987, 101 Stat. 1330–274; Pub. L. 101–239, title IV, § 4002(a), Dec. 19, 1989, 103 Stat. 2133; Pub. L. 101–508, title VII, §§ 7001(a)(3), 7101(a), Nov. 5, 1990, 104 Stat. 1388–328, 1388–331; Pub. L. 101–510, div. C, title XXXV, § 3506(c), Nov. 5, 1990, 104 Stat. 1847; Pub. L. 103–424, § 10, Oct. 29, 1994, 108 Stat. 4366; Pub. L. 104–52, title IV, § 2, Nov. 19, 1995, 109 Stat. 490; Pub. L. 104–316, title I, § 103(h), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 105–362, title XIII, § 1302(c), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 108–18, § 2(c), (d)(1)(A), Apr. 23, 2003, 117 Stat. 625, 626; Pub. L. 109–435, title VIII, § 802(a)(2), Dec. 20, 2006, 120 Stat. 3249; Pub. L. 116–126, § 3(a), Mar. 18, 2020, 134 Stat. 176.)

5 - 4 - 7 - 2 - 3 - 21 Offset relating to certain benefits under the Social Security ActOffset relating to certain benefits under the Social Security Act

(a)

(1)

Notwithstanding any other provision of this subchapter, if an individual under section 8402(b)(2) is entitled, or would on proper application be entitled, to old-age insurance benefits under title II of the Social Security Act, the annuity otherwise payable to such individual shall be reduced under this subsection.

(2)A reduction under this subsection commences beginning with the first month for which the individual both—

(A)

is entitled to an annuity under this subchapter; and

(B)

is entitled, or would on proper application be entitled, to old-age insurance benefits under title II of the Social Security Act.

(3)

(A)

(i)Subject to clause (ii) and subparagraphs (B) and (C), the amount of a reduction under this subsection shall be equal to the difference between—

(I)

the old-age insurance benefit which would be payable to the individual for the month referred to in paragraph (2); and

(II)

the old-age insurance benefit which would be so payable, excluding all wages derived from Federal service of the individual, and assuming the individual were fully insured (as defined by section 214(a) of the Social Security Act).

(ii)

For purposes of this subsection, the amount of a benefit referred to in subclause (I) or (II) of clause (i) shall be determined without regard to subsections (b) through (l) of section 203 of the Social Security Act, and without regard to the requirement that an application for such benefit be filed.

(B)A reduction under this subsection—

(i)may not exceed an amount equal to the product of—

(I)

the old-age insurance benefit to which the individual is entitled (or would on proper application be entitled) for the month referred to in paragraph (2), determined without regard to subsections (b) through (l) of section 203 of the Social Security Act; and

(II)

a fraction, as determined under section 8421(b)(3) with respect to the individual, except that the reference to “service” in subparagraph (A) of such section shall be considered to meanFederal service; and

(ii)

may not cause the annuity payment for an individual to be reduced below zero.

(C)

An amount computed under subclause (I) or (II) of subparagraph (A)(i), or under subparagraph (B)(i)(I), for purposes of determining the amount of a reduction under this subsection shall be adjusted under section 8340 of this title.

(4)A reduction under this subsection applies with respect to the annuity otherwise payable to such individual under this subchapter (other than under section 8337) for the month involved—

(A)

based on service of such individual; and

(B)

without regard to section 8345(j), if otherwise applicable.

(5)

The operation of the preceding paragraphs of this subsection shall not be considered for purposes of applying the provisions of the second sentence of section 215(a)(7)(B)(i) or the provisions of section 215(d)(5)(ii) of the Social Security Act in determining any amount under subclause (I) or (II) of paragraph (3)(A)(i) or paragraph (3)(B)(i)(I) for purposes of this subsection.

(b)

(1)Notwithstanding any other provision of this subchapter—

(A)

a disability annuity to which an individual described in section 8402(b)(2) is entitled under this subchapter, and

(B)

a survivor annuity to which a person is entitled under this subchapter based on the service of an individual described in section 8402(b)(2),

shall be subject to reduction under this subsection if that individual or person is also entitled (or would on proper application also be entitled) to any similar benefits under title II of the Social Security Act based on the wages and self-employment income of such individual described in section 8402(b)(2).

(2)

(A)

Subject to subparagraph (B), reductions under this subsection shall be made in a manner consistent with the manner in which reductions under subsection (a) are computed and otherwise made.

(B)

Reductions under this subsection shall be discontinued if, or for so long as, entitlement to the similar benefits under title II of the Social Security Act (as referred to in paragraph (1)) is terminated (or, in the case of an individual who has not made proper application therefor, would be terminated).

(3)

For the purpose of applying section 224 of the Social Security Act to the disability insurance benefit used to compute the reduction under this subsection, the amount of the CSRS annuity considered shall be the amount of the CSRS annuity before application of this section.

(4)

The Office shall prescribe regulations to carry out this subsection.

(c)

For the purpose of this section, the term “Federal service” means service which is employment for the purposes of title II of the Social Security Act and chapter 21 of the Internal Revenue Code of 1986 by reason of the amendments made by section 101 of the Social Security Amendments of 1983.

(d)In administering subsections (a) through (c)—

(1)the terms “an individual under section 8402(b)(2)” and “an individual described in section 8402(b)(2)” shall each be considered to include any individual—

(A)

who is subject to this subchapter as a result of any provision of law described in section 8347(o), and

(B)

whose employment (as described in section 8347(o)) is also employment for purposes of title II of the Social Security Act and chapter 21 of the Internal Revenue Code of 1986; and

(2)

the term “Federal service”, as applied with respect to any individual to whom this section applies as a result of paragraph (1), means any employment referred to in paragraph (1)(B) performed after December 31, 1983.

(Added Pub. L. 99–335, title II, § 201(b)(1), June 6, 1986, 100 Stat. 589; amended Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–238, title I, § 108(b)(2), Jan. 8, 1988, 101 Stat. 1748.)

5 - 4 - 7 - 2 - 3 - 22 Retirement counseling

(a)

For the purposes of this section, the term “retirement counselor”, when used with respect to an agency, means an employee of the agency who is designated by the head of the agency to furnish information on benefits under this subchapter and chapter 84 of this title and counseling services relating to such benefits to other employees of the agency.

(b)

The Director of the Office of Personnel Management shall establish a training program for all retirement counselors of agencies of the Federal Government.

(c)

(1)

The training program established under subsection (b) of this section shall provide for comprehensive training in the provisions and administration of this subchapter and chapter 84 of this title, shall be designed to promote fully informed retirement decisions by employees andMembers under this subchapter and individuals subject to chapter 84 of this title, and shall be revised as necessary to assure that the information furnished to retirement counselors of agencies under the program is current.

(2)

The Director shall conduct a training session under the training program at least once every 3 months.

(3)

Once each year, each retirement counselor of an agency shall successfully complete a training session conducted under the training program.

(Added Pub. L. 99–335, title II, § 205(a), June 6, 1986, 100 Stat. 592; amended Pub. L. 99–556, title II, § 202, Oct. 27, 1986, 100 Stat. 3135.)

5 - 4 - 7 - 2 - 3 - 23 Participation in the Thrift Savings Plan

(a)

(1)

An employee or Member may elect to contribute to the Thrift SavingsFund established by section 8437 of this title.

(2)

An election may be made under paragraph (1) as provided under section 8432(b) for individuals who are subject to chapter 84 of this title.

(b)

(1)

Except as otherwise provided in this subsection, the provisions of subchapters III and VII of chapter 84 of this title shall apply with respect toemployees and Members making contributions to the Thrift Savings Fund under subsection (a) of this section.

(2)

(A)

An employee or Member may contribute to the Thrift Savings Fund in any pay period any amount not exceeding the maximum percentage of such employee’s or Member’s basic pay for such pay period allowable under subparagraph (B).

(B)

The maximum percentage allowable under this subparagraph shall be determined in accordance with the following table:

In the case of a pay period beginning in fiscal year:	The maximum percentage allowable is:
2001	6
2002	7
2003	8
2004	9
2005	10
2006 or thereafter	100.

(C)

Notwithstanding any limitation under this paragraph, an eligible participant (as defined by section 414(v) of the Internal Revenue Code of 1986) may make such additional contributions to the Thrift Savings Fund as are permitted by such section 414(v) and regulations of the ExecutiveDirector consistent therewith.

(3)

No contributions may be made by an employing agency for the benefit of an employee or Member under section 8432(c) of this title.

(4)

Section 8433(b) of this title applies to any employee or Member who elects to make contributions to the Thrift Savings Fund under subsection (a) of this section and separates from Government employment.

(5)

(A)

The provisions of section 8435 of this title that require a waiver or consent by the spouse of an employee or Member (or former employee or Member) shall not apply with respect to sums in the Thrift SavingsFund contributed by the employee or Member (or former employee orMember) and earnings in the fund attributable to such sums.

(B)

An election or change of election authorized by subchapter III of chapter 84 of this title shall be effective in the case of a marriedemployee or Member, and a loan or withdrawal may be approved under section 8433(g) and (h) of this title in such case, only after the ExecutiveDirector notifies the employee’s or Member’s spouse that the election or change of election has been made or that the Executive Director has received an application for such loan or withdrawal, as the case may be.

(C)

Subparagraph (B) may be waived with respect to a spouse if the employee or Member establishes to the satisfaction of the ExecutiveDirector of the Federal Retirement Thrift Investment Board that the whereabouts of such spouse cannot be determined.

(D)

Except with respect to the making of loans or withdrawals under section 8433(g) or (h), none of the provisions of this paragraph requiring notification to a spouse or former spouse of an employee, Member,former employee, or former Member shall apply in any case in which the nonforfeitable account balance of the employee, Member, formeremployee, or former Member is $3,500 or less.

(6)

Notwithstanding paragraph (4), if an employee or Member separates from Government employment and such employee’s or Member’s nonforfeitable account balance is less than an amount that the ExecutiveDirector prescribes by regulation, the Executive Director shall pay the nonforfeitable account balance to the participant in a single payment.

(7)

For the purpose of this section, the term “nonforfeitable account balance” has the same meaning as under section 8401(32).

(8)In applying section 8432b to an employee contributing to the Thrift Savings Fund after being restored to or reemployed in a position subject to this subchapter, pursuant to chapter 43 of title 38—

(A)

any reference in such section to contributions under section 8432(a)shall be considered a reference to employee contributions under this section, except that the reference in section 8432b(b)(2)(B) to employee contributions under section 8432(a) shall be considered a reference toemployee contributions under this subchapter and section 8440e;

(B)

the contribution rate under section 8432b(b)(2)(A) shall be the maximum percentage allowable under subsection (b)(2) of this section; and

(C)

subsections (c) and (d) of section 8432b shall be disregarded.

(9)

For the purpose of this section, separation from Governmentemployment includes a transfer described in section 8431.

(c)

A member of the Foreign Service described in section 103(6) of the Foreign Service Act of 1980 shall be ineligible to make any election under this section.

(d)

(1)

A foreign national employee of the Central Intelligence Agency whoseservices are performed outside the United States shall be ineligible to make an election under this section.

(2)

(A)

Only those employees of the Central Intelligence Agency participating in the pilot project required by section 402(b) of the Intelligence Authorization Act for Fiscal Year 2003 (Public Law 107–306; 50 U.S.C. 403–4 note) [1] and making contributions to the Thrift Savings Fund out ofbasic pay may also contribute (by direct transfer to the Fund) any part of bonus pay received by the employee as part of the pilot project.

(B)

Contributions under this paragraph are subject to section 8432(d) of this title.

(e)

The Executive Director of the Federal Retirement Thrift Investment Boardmay prescribe regulations to carry out this section.

(Added Pub. L. 99–335, title II, § 206(a)(1), June 6, 1986, 100 Stat. 593; amended Pub. L. 100–238, title I, § 111(a), Jan. 8, 1988, 101 Stat. 1750; Pub. L. 101–335, §§ 3(b)(1), 6(b)(1), July 17, 1990, 104 Stat. 320, 323; Pub. L. 102–183, title III, § 308(a), Dec. 4, 1991, 105 Stat. 1265; Pub. L. 102–484, div. D, title XLIV, § 4437(c), Oct. 23, 1992, 106 Stat. 2724; Pub. L. 103–226, § 9(a), (i)(1), (2), Mar. 30, 1994, 108 Stat. 118, 121; Pub. L. 103–353, § 4(d), Oct. 13, 1994, 108 Stat. 3172; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 202]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–374; Pub. L. 106–65, div. A, title VI, § 661(a)(3)(B), Oct. 5, 1999, 113 Stat. 671; Pub. L. 106–168, title II, § 203(b), Dec. 12, 1999, 113 Stat. 1820; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–234; Pub. L. 107–304, § 1(a), Nov. 27, 2002, 116 Stat. 2363; Pub. L. 108–177, title IV, § 405(b)(1), Dec. 13, 2003, 117 Stat. 2632; Pub. L. 108–469, § 1(d)(1), Dec. 21, 2004, 118 Stat. 3891.)

5 - 4 - 7 - 3 FEDERAL EMPLOYEES’ RETIREMENT SYSTEM (§§ 8401 to 8480)

5 - 4 - 7 - 3 - 1 GENERAL PROVISIONS (§§ 8401 to 8403)

5 - 4 - 7 - 3 - 1 - 1 Definitions

For the purpose of this chapter—

(1)

the term “account” means an account established and maintained under section 8439(a) of this title;

(2)

the term “annuitant” means a former employee or Member who, on the basis of that individual’s service, meets all requirements for title to an annuity under subchapter II or V of this chapter and files claim therefor;

(3)

the term “average pay” means the largest annual rate resulting from averaging an employee’s or Member’s rates of basic pay in effect over any 3 consecutive years of service or, in the case of an annuity under this chapter based on service of less than 3 years, over the total service, with each rate weighted by the period it was in effect;

(4)

the term “basic pay” has the meaning given such term by section 8331(3);

(5)

the term “Board” means the Federal Retirement Thrift Investment Boardestablished by section 8472(a) of this title;

(6)

the term “Civil Service Retirement and Disability Fund” or “Fund” means the Civil Service Retirement and Disability Fund under section 8348;

(7)

the term “court” means any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian court;

(8)

the term “Director” means the Director of the Office of Personnel Management;

(9)the term “dynamic assumptions” means economic assumptions that are used in determining actuarial costs and liabilities of a retirement system and in anticipating the effects of long-term future—

(A)

investment yields;

(B)

increases in rates of basic pay; and

(C)

rates of price inflation;

(10)

the term “earnings”, when used with respect to the Thrift Savings Fund,means the amount of the gain realized or yield received from the investment of sums in such Fund;

(11)the term “employee” means—

(A)

an individual referred to in subparagraph (A), (E), (F), (H), (I), (J), or (K) of section 8331(1) of this title;

(B)

a Congressional employee as defined in section 2107 of this title, including a temporary Congressional employee and an employee of the Congressional Budget Office; and

(C)

an employee described in section 2105(c) who has made an election under section 8461(n)(1) to remain covered under this chapter;

whose civilian service after December 31, 1983, is employment for the purposes of title II of the Social Security Act and chapter 21 of the Internal Revenue Code of 1986, except that such term does not include—

(i)any individual referred to in—

(I)

clause (i), (vi), or (ix) of paragraph (1) of section 8331;

(II)

clause (ii) of such paragraph; or

(III)

the undesignated material after the last clause of such paragraph;

(ii)

any individual excluded under section 8402(c) of this title;

(iii)

a member of the Foreign Service described in section 103(6) of the Foreign Service Act of 1980; or

(iv)

an employee who has made an election under section 8461(n)(2) to remain covered by a retirement system established for employees described in section 2105(c);

(12)the term “former spouse” means a former spouse of an individual—

(A)

if such individual performed at least 18 months of civilian servicecreditable under section 8411 as an employee or Member; and

(B)

if the former spouse was married to such individual for at least 9 months;

(13)

the term “Executive Director” means the Executive Director appointed under section 8474(a);

(14)the term “firefighter” means—

(A)an employee, the duties of whose position—

(i)

are primarily to perform work directly connected with the control and extinguishment of fires; and

(ii)

are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals, as determined by the Director considering the recommendations of the employing agency; and

(B)

an employee who is transferred directly to a supervisory or administrative position after performing duties described in subparagraph (A) for at least 3 years;

(15)

the term “Government” means the Federal Government, Gallaudet College, and, in the case of an employee described in paragraph (11)(C), a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard described in section 2105(c);

(16)

the term “Indian court” has the meaning given such term by section 8331(24);

(17)the term “law enforcement officer” means—

(A)an employee, the duties of whose position—

(i)are primarily—

(I)

the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, or

(II)

the protection of officials of the United States against threats to personal safety; and

(ii)

(B)

an employee of the Department of the Interior or the Department of the Treasury (excluding any employee under subparagraph (A)) who occupies a position that, but for the enactment of the Federal Employees’ RetirementSystem Act of 1986, would be subject to the District of Columbia Police andFirefighters’ Retirement System, as determined by the Secretary of the Interior or the Secretary of the Treasury, as appropriate;

(C)

an employee who is transferred directly to a supervisory or administrative position after performing duties described in subparagraph (A) and (B) for at least 3 years; and

(D)an employee—

(i)

of the Bureau of Prisons or Federal Prison Industries, Incorporated;

(ii)

of the Public Health Service assigned to the field service of the Bureau of Prisons or of the Federal Prison Industries, Incorporated; or

(iii)

in the field service at Army or Navy disciplinary barracks or at any other confinement and rehabilitation facility operated by any of the armed forces;

whose duties in connection with individuals in detention suspected or convicted of offenses against the criminal laws of the United States or of the District of Columbia or offenses against the punitive articles of the Uniform Code of Military Justice (chapter 47 of title 10) require frequent direct contact with these individuals in their detention and are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals, as determined by the head of the employing agency;

(18)

the term “loss”, as used with respect to the Thrift Savings Fund, includes the amount of any loss resulting from the investment of sums in such Fund, or from the breach of any responsibility, duty, or obligation under section 8477.[1]

(19)the term “lump-sum credit” means the unrefunded amount consisting of—

(A)

retirement deductions made from the basic pay of an employee orMember under section 8422(a) of this title (or under section 204 of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983);

(B)

amounts deposited by an employee or Member under section 8422(e);

(C)

amounts deposited by an employee, Member, or survivor under section 8411(f) or 8422(i); and

(D)

interest on the deductions and deposits which, for any calendar year, shall be equal to the overall average yield to the Fund during the preceding fiscal year from all obligations purchased by the Secretary of the Treasury during such fiscal year under section 8348(c), (d), and (e), as determined by the Secretary (compounded annually);

but does not include interest—

(i)

if the service covered thereby aggregates 1 year or less; or

(ii)

for a fractional part of a month in the total service;

(20)

the term “Member” has the same meaning as provided in section 2106, except that such term does not include an individual who irrevocably elects, by written notice to the official by whom such individual is paid, not to participate in the Federal Employees’ Retirement System, and who (in the case of an individual who is a Member of the House of Representatives, including a Delegate or Resident Commissioner to the Congress) serves as a Member prior to the date of the enactment of the Legislative Branch Appropriations Act, 2004;

(21)

the term “net earnings” means the excess of earnings over losses;

(22)

the term “net losses” means the excess of losses over earnings;

(23)

the term “normal-cost percentage” means the entry-age normal cost of the provisions of the System which relate to the Fund, computed by the Office in accordance with generally accepted actuarial practice and standards (usingdynamic assumptions) and expressed as a level percentage of aggregate basic pay;

(24)

the term “Office” means the Office of Personnel Management;

(25)

the term “price index” has the same meaning as provided in section 8331(15);

(26)

the term “service” means service which is creditable under section 8411;

(27)the term “supplemental liability” means the estimated excess of—

(A)

the actuarial present value of all future benefits payable from the Fundunder this chapter based on the service of current or former employees orMembers, over

(B)the sum of—

(i)

the actuarial present value of deductions to be withheld from the future basic pay of employees and Members currently subject to this chapter pursuant to section 8422;

(ii)

the actuarial present value of the future contributions to be made pursuant to section 8423(a) with respect to employees and Members currently subject to this chapter;

(iii)the Fund balance as of the date the supplemental liability is determined, to the extent that such balance is attributable—

(I)

to the System, or

(II)

to contributions made under the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 by or on behalf of an individual who became subject to the System; and

(iv)

any other appropriate amount, as determined by the Office in accordance with generally accepted actuarial practices and principles;

(28)

the term “survivor” means an individual entitled to an annuity under subchapter IV of this chapter;

(29)

the term “System” means the Federal Employees’ Retirement System described in section 8402(a);

(30)

the term “military technician (dual status)” means an employee described in section 10216 of title 10;

(31)the term “military service” means honorable active service—

(A)

in the armed forces;

(B)

in the commissioned corps of the Public Health Service after June 30, 1960; or

(C)

in the commissioned corps of the National Oceanic and Atmospheric Administration, or a predecessor entity in function, after June 30, 1961;

(32)

the term “nonforfeitable account balance” means any amounts in anaccount, established and maintained under subchapter III, which are nonforfeitable (as determined under section 8432(g));

(33)

“Nuclear materials courier” has the meaning given that term in section 8331(27);

(34)

the term “Government physician” has the meaning given such term under section 5948;

(35)the term “air traffic controller” or “controller” means—

(A)

a controller within the meaning of section 2109(1); and

(B)

a civilian employee of the Department of Transportation or the Department of Defense who is the immediate supervisor of a person described in section 2109(1)(B);

(36)

the term “customs and border protection officer” means an employee in the Department of Homeland Security (A) who holds a position within the GS–1895 job series (determined applying the criteria in effect as of September 1, 2007) or any successor position, and (B) whose duties include activities relating to the arrival and departure of persons, conveyances, and merchandise at ports of entry, including any such employee who is transferred directly to a supervisory or administrative position in the Department of Homeland Security after performing such duties (as described in subparagraph (B)) in 1 or more positions (as described in subparagraph (A)) for at least 3 years;

(37)the term “revised annuity employee” means any individual who—

(A)on December 31, 2012—

(i)

is not an employee or Member covered under this chapter;

(ii)

is not performing civilian service which is creditable service under section 8411; and

(iii)

has less than 5 years of creditable civilian service under section 8411; and

(B)

after December 31, 2012, and before January 1, 2014, becomes employed as an employee or becomes a Member covered under this chapter performing service which is creditable service under section 8411;

(38)the term “further revised annuity employee” means any individual who—

(A)on December 31, 2013—

(i)

is not an employee or Member covered under this chapter;

(ii)

is not performing civilian service which is creditable service under section 8411; and

(iii)

has less than 5 years of creditable civilian service under section 8411; and

(B)

after December 31, 2013, becomes employed as an employee or becomes a Member covered under this chapter performing service which is creditableservice under section 8411; and

(39)

“representative payee” means a person (including an organization) designated under section 8466(c)(1) to receive payments on behalf of a minor or an individual mentally incompetent or under other legal disability.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 517; amended Pub. L. 99–556, title I, §§ 107, 109, 119, Oct. 27, 1986, 100 Stat. 3132, 3134; Pub. L. 100–238, title I, §§ 103(a)(2), (c), (d)(2), 113(b)(1), Jan. 8, 1988, 101 Stat. 1744, 1745, 1750; Pub. L. 100–679, § 13(a)(2), Nov. 17, 1988, 102 Stat. 4071; Pub. L. 101–335, § 6(a)(1), July 17, 1990, 104 Stat. 322; Pub. L. 101–474, § 5(o), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 101–508, title VII, § 7202(k)(1), Nov. 5, 1990, 104 Stat. 1388–338; Pub. L. 103–337, div. A, title XVI, § 1677(a)(4), Oct. 5, 1994, 108 Stat. 3019; Pub. L. 103–353, § 5(c), (e)(1), Oct. 13, 1994, 108 Stat. 3174; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 206(a)(1)]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–378; Pub. L. 105–261, div. C, title XXXI, § 3154(f), Oct. 17, 1998, 112 Stat. 2255; Pub. L. 106–65, div. A, title V, § 522(c)(2), Oct. 5, 1999, 113 Stat. 597; Pub. L. 106–571, § 3(c)(2), Dec. 28, 2000, 114 Stat. 3056; Pub. L. 108–83, title I, § 104(a), Sept. 30, 2003, 117 Stat. 1017; Pub. L. 108–176, title II, § 226(a)(2), Dec. 12, 2003, 117 Stat. 2529; Pub. L. 110–161, div. E, title V, § 535(b)(1), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 110–181, div. A, title XI, § 1115(b), Jan. 28, 2008, 122 Stat. 361; Pub. L. 111–84, div. A, title XIX, § 1904(b)(1), Oct. 28, 2009, 123 Stat. 2616; Pub. L. 112–96, title V, § 5001(a), Feb. 22, 2012, 126 Stat. 199; Pub. L. 113–67, div. A, title IV, § 401(a), Dec. 26, 2013, 127 Stat. 1183; Pub. L. 116–126, § 2(a)(2), Mar. 18, 2020, 134 Stat. 174.)

5 - 4 - 7 - 3 - 1 - 2 Federal Employees’ Retirement System; exclusions

Except as otherwise provided in this chapter, the benefits payable under the System are in addition to the benefits payable under the Social Security Act.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 522.)

5 - 4 - 7 - 3 - 1 - 3 Relationship to the Social Security Act

Except as otherwise provided in this chapter, the benefits payable under the System are in addition to the benefits payable under the Social Security Act.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 522.)

5 - 4 - 7 - 3 - 2 BASIC ANNUITY (§§ 8410 to 8425)

5 - 4 - 7 - 3 - 2 - 1 Eligibility for annuity

Notwithstanding any other provision of this chapter, an employee or Member must complete at least 5 years of civilian service creditable under section 8411 in order to be eligible for an annuity under this subchapter.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 522.)

5 - 4 - 7 - 3 - 2 - 2 Creditable service

(a)

(1)

The total service of an employee or Member is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.

(2)

Credit may not be allowed for a period of separation from the service in excess of 3 calendar days.

(b)For the purpose of this chapter, creditable service of an employee or Member includes—

(1)

employment as an employee, and any service as a Member (including the period from the date of the beginning of the term for which elected or appointed to the date of taking office as a Member), after December 31, 1986;

(2)

except as provided in subsection (f), service with respect to which deductions and withholdings under section 204(a)(1) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 have been made;

(3)

except as provided in subsection (f) or (h), any civilian service (performed before January 1, 1989, other than any service under paragraph (1) or (2)) which, but for the amendments made by subsections (a)(4) and (b) of section 202 of the Federal Employees’ Retirement System Act of 1986, would be creditable under subchapter III of chapter 83 of this title (determined without regard to any deposit or redeposit requirement under such subchapter, any requirement that the individual become subject to such subchapter after performing the service involved, or any requirement that the individual give notice in writing to the official by whom such individual is paid of such individual’s desire to become subject to such subchapter);

(4)

a period of service (other than any service under any other paragraph of this subsection and other than any military service) that was creditable under the Foreign Service Pension System described in subchapter II of chapter 8 [1]of the Foreign Service Act of 1980, if the employee or Member waives credit for such service under the Foreign Service Pension System and makes a payment to the Fund equal to the amount that would have been deducted from pay under section 8422(a) had the employee been subject to this chapter during such period of service (together with interest on such amount computed under paragraphs (2) and (3) of section 8334(e));

(5)

a period of service (other than any service under any other paragraph of this subsection, any military service, and any service performed in the employ of a Federal Reserve Bank) that was creditable under the Bank Plan (as defined in subsection (i)), if the employee waives credit for such service under the Bank Plan and makes a payment to the Fund equal to the amount that would have been deducted from pay under section 8422(a) had theemployee been subject to this chapter during such period of service (together with interest on such amount computed under paragraphs (2) and (3) of section 8334(e)); and

(6)

service performed by any individual as an employee paid from nonappropriated funds of an instrumentality of the Department of Defenseor the Coast Guard described in section 2105(c) that is not otherwise creditable, if the individual elects (in accordance with regulations prescribed by the Office) to have such service credited under this paragraph.

Paragraph (5) shall not apply in the case of any employee as to whom subsection (g) (or, to the extent subchapter III of chapter 83 is involved, section 8332(n)) otherwise applies.

(c)

(1)Except as provided in paragraphs (2), (3), and (5), an employee or Member shall be allowed credit for—

(A)

each period of military service performed before January 1, 1957; and

(B)

each period of military service performed after December 31, 1956, and before the separation on which title to annuity is based, if a deposit (including interest, if any) is made with respect to such period in accordance with section 8422(e).

(A)based on a service-connected disability—

(i)

incurred in combat with an enemy of the United States; or

(ii)

caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 1101 of title 38; or

(B)

under chapter 1223 of title 10 (or under chapter 67 of that title as in effect before the effective date of the Reserve Officer Personnel Management Act).

(3)An employee or Member who has made a deposit under section 8334(j)(or a similar prior provision of law) with respect to a period of military service, and who has not taken a refund of such deposit—

(A)

shall be allowed credit for such service without regard to the deposit requirement under paragraph (1)(B); and

(B)shall be entitled, upon filing appropriate application therefor with the Office, to a refund equal to the difference between—

(i)

the amount deposited with respect to such period under such section 8334(j) (or prior provision), excluding interest; and

(ii)

the amount which would otherwise have been required with respect to such period under paragraph (1)(B).

(4)

(A)Notwithstanding paragraph (2), for purposes of computing a survivorannuity for a survivor of an employee or Member—

(i)

who was awarded retired pay based on any period of military service, and

(ii)

whose death occurs before separation from the service,

creditable service of the deceased employee or Member shall include each period of military service includable under subparagraph (A) or (B) of paragraph (1) or under paragraph (3). In carrying out this subparagraph, any amount deposited under section 8422(e)(5) shall be taken into account.

(i)

payable to a survivor (other than a child) under a retirementsystem for members of the uniformed services;

(ii)

if, or to the extent that, such benefits are based on such period of military service.

(C)The Office of Personnel Management shall prescribe regulations to carry out this paragraph, including regulations under which—

(i)

a survivor may elect not to be covered by this paragraph; and

(ii)

this paragraph shall be carried out in any case which involves a former spouse.

(5)

If, after January 1, 1997, an employee or Member waives retired pay that is subject to a court order for which there has been effective service on the Secretary concerned for purposes of section 1408 of title 10, the military service on which the retired pay is based may be credited as service for purposes of this chapter only if the employee or Member authorizes theDirector to deduct and withhold from the annuity payable to the employee or Member under this subchapter an amount equal to the amount that, if the annuity payment was instead a payment of the employee’s or Member’s retired pay, would have been deducted and withheld and paid to the former spouse covered by the court order under such section 1408. The amount deducted and withheld under this paragraph shall be paid to that former spouse. The period of civil service employment by the employee or Member shall not be taken into consideration in determining the amount of the deductions and withholding or the amount of the payment to the former spouse. The Director of the Office of Personnel Management shall prescribe regulations to carry out this paragraph.

(d)

Credit under this chapter shall be allowed for leaves of absence without pay granted an employee while performing military service, or while receiving benefits under subchapter I of chapter 81. An employee or former employee who returns to duty after a period of separation is deemed, for the purpose of this subsection, to have been on leave of absence without pay for that part of the period in which that individual was receiving benefits under subchapter I of chapter 81. Credit may not be allowed for so much of other leaves of absence without pay as exceeds 6 months in the aggregate in a calendar year.

(e)

Credit shall be allowed for periods of approved leave without pay granted an employee to serve as a full-time officer or employee of an organization composed primarily of employees (as defined by section 8331(1) or 8401(11)), subject to the employee arranging to pay, through the employee’s employing agency, within 60 days after commencement of such leave without pay, amounts equal to the retirement deductions and agency contributions which would be applicable under sections 8422(a) and 8423(a), respectively, if the employee were in pay status. If the election and all payments provided by this subsection are not made, the employee may not receive credit for the periods of leave without pay, notwithstanding the third sentence of subsection (d).

(f)

(1)

An employee or Member who has received a refund of retirement deductions under subchapter III of chapter 83 with respect to any service described in subsection (b)(2) or (b)(3) may not be allowed credit for suchservice under this chapter unless such employee or Member deposits an amount equal to 1.3 percent of basic pay for such service, with interest. A deposit under this paragraph may be made only with respect to a refund received pursuant to an application filed with the Office before the date on which the employee or Member first becomes subject to this chapter.

(2)

An employee or Member may not be allowed credit under this chapter for any service described in subsection (b)(3) for which retirement deductions under subchapter III of chapter 83 have not been made, unless such employee or Member deposits an amount equal to 1.3 percent of basic pay for such service, with interest.

(3)

Interest under paragraph (1) or (2) shall be computed in accordance with paragraphs (2) and (3) of section 8334(e) and regulations prescribed by the Office.

(4)

For the purpose of survivor annuities, deposits authorized by the preceding provisions of this subsection may also be made by a survivor of an employee or Member.

(g)Any employee who—

(1)

(2)

(h)

An employee or Member shall be allowed credit for service as a volunteer or volunteer leader under part A of title VIII of the Economic Opportunity Act of 1964, as a full-time volunteer enrolled in a program of at least 1 year’s duration under part A, B,1 or C of title I of the Domestic Volunteer Service Act of 1973, or as a volunteer or volunteer leader under the Peace Corps Act performed at any time prior to the separation on which the entitlement to any annuity under this subchapter is based if the employee or Member has made a deposit with interest, if any, with respect to such service under section 8422(f).

(i)

 [2] For purposes of subsection (b)(5), the term “Bank Plan” means the benefit structure in which employees of the Board of Governors of the Federal Reserve System appointed on or after January 1, 1984, participate, which benefit structure is a component of the Retirement Plan for Employees of the Federal Reserve System, established under section 10 of the Federal Reserve Act (and any redesignated or successor version of such benefit structure, if so identified in writing by the Board of Governors of the Federal Reserve System for purposes of this chapter).

(i)

(1) 2 Upon application to the Office of Personnel Management, any individual who was an employee on the date of enactment of this paragraph, and who has on such date or thereafter acquired 5 years or more of creditable civilian service under this section (exclusive of service for which credit is allowed under this subsection) shall be allowed credit (as service as a congressional employee) for service before December 31, 1990, while employed by the Democratic Senatorial Campaign Committee, the Republican Senatorial Campaign Committee, the Democratic National Congressional Committee, or the Republican National Congressional Committee, if—

(A)

such employee has at least 4 years and 6 months of service on such committees as of December 31, 1990; and

(B)

such employee deposits to the Fund an amount equal to 1.3 percent of the base pay for such service, with interest.

(2)

The Office shall accept the certification of the President of the Senate (or the President’s designee) or the Speaker of the House of Representatives (or the Speaker’s designee), as the case may be, concerning the service of, and the amount of compensation received by, an employee with respect to whom credit is to be sought under this subsection.

(3)

An individual shall not be granted credit for such service under this subsection if eligible for credit under section 8332(m) for such service.

(k)

(1)

 [3] The Office of Personnel Management shall accept, for the purposes of this chapter, the certification of the head of a nonappropriated fund instrumentality of the United States concerning service of the type described in subsection (b)(6) that was performed for such nonappropriated fund instrumentality.

(2)

Service credited under subsection (b)(6) may not also be credited under any other retirement system provided for employees paid from nonappropriated funds of a nonappropriated fund instrumentality.

(l)

(1)

Notwithstanding any other provision of this chapter, the service of an individual finally convicted of an offense described in paragraph (2) shall not be taken into account for purposes of this chapter, except that this sentence applies only to service rendered as a Member (irrespective of when rendered). Any such individual (or other person determined under section 8424(d), if applicable) shall be entitled to be paid so much of such individual’slump-sum credit as is attributable to service to which the preceding sentence applies.

(2)An offense described in this paragraph is any offense described in section 8332(o)(2)(B) for which the following apply:

(A)

(B)

(C)

The offense is committed after the date of enactment of this subsection.

(3)

(4)The Office of Personnel Management shall prescribe any regulations necessary to carry out this subsection. Such regulations shall include—

(A)

provisions under which interest on any lump-sum payment under the second sentence of paragraph (1) shall be limited in a manner similar to that specified in the last sentence of section 8316(b); and

(B)provisions under which the Office may provide for—

(i)

(ii)

an appropriate adjustment in the amount of any lump-sum payment under the second sentence of paragraph (1) to reflect the application of clause (i).

(5)

Regulations to carry out clause (i) of paragraph (4)(B) shall include provisions to ensure that the authority to make any payment under such clause to the spouse or children of an individual shall be available only to the extent that the application of such clause is considered necessary and appropriate taking into account the totality of the circumstances, including the financial needs of the spouse or children, whether the spouse or children participated in an offense described in paragraph (2) of which such individual was finally convicted, and what measures, if any, may be necessary to ensure that the convicted individual does not benefit from any such payment.

(6)For purposes of this subsection—

(A)

(B)

the term “Member” has the meaning given such term by section 2106, notwithstanding section 8401(20); and

(C)

the term “child” has the meaning given such term by section 8441.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 522; amended Pub. L. 99–556, title I, § 103, title V, § 502(b), Oct. 27, 1986, 100 Stat. 3131, 3140; Pub. L. 100–238, title I, §§ 104(b), 105(a), Jan. 8, 1988, 101 Stat. 1746; Pub. L. 102–83, § 5(c)(2), Aug. 6, 1991, 105 Stat. 406; Pub. L. 102–242, title IV, § 466(b), Dec. 19, 1991, 105 Stat. 2385; Pub. L. 103–82, title III, § 371(b)(1), Sept. 21, 1993, 107 Stat. 910; Pub. L. 103–337, div. A, title XVI, § 1677(a)(3), Oct. 5, 1994, 108 Stat. 3019; Pub. L. 104–201, div. A, title VI, § 637(b), Sept. 23, 1996, 110 Stat. 2580; Pub. L. 106–168, title II, § 202(a), Dec. 12, 1999, 113 Stat. 1817; Pub. L. 106–554, § 1(a)(4) [div. A, § 901(a)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–196; Pub. L. 107–107, div. A, title XI, § 1132(b)(1), Dec. 28, 2001, 115 Stat. 1243; Pub. L. 110–81, title IV, § 401(b), Sept. 14, 2007, 121 Stat. 756; Pub. L. 112–105, § 15(a)(2), Apr. 4, 2012, 126 Stat. 301.)

5 - 4 - 7 - 3 - 2 - 3 Immediate retirement

(a)

An employee or Member who is separated from the service after attaining the applicable minimum retirement age under subsection (h) and completing 30 years of service is entitled to an annuity.

(b)

An employee or Member who is separated from the service after becoming 60 years of age and completing 20 years of service is entitled to an annuity.

(c)

An employee or Member who is separated from the service after becoming 62 years of age and completing 5 years of service is entitled to an annuity.

(d)

(1)An employee who is separated from the service, except by removal for cause on charges of misconduct or delinquency—

(A)

after completing 25 years of service as a law enforcement officer,member of the Capitol Police or Supreme Court Police, firefighter,nuclear materials courier, or customs and border protection officer, or any combination of such service totaling at least 25 years, or

(B)

after becoming 50 years of age and completing 20 years of service as a law enforcement officer, member of the Capitol Police or SupremeCourt Police, firefighter, nuclear materials courier, or customs and border protection officer, or any combination of such service totaling at least 20 years,

is entitled to an annuity.

(2)

(A)In this paragraph—

(i)the term “affected individual” means an individual covered under this chapter who—

(I)

is performing service in a covered position;

(II)

(III)

(IV)is appointed to a position in the civil service that—

(aa)

is not a covered position; and

(bb)

is within an agency that regularly appoints individuals to supervisory or administrative positions related to the activities of the former covered position of the individual;

(ii)

(B)

(C)

Subparagraph (B) shall only apply if the affected employee transitions to a position described in subparagraph (A)(i)(IV) without a break inservice exceeding 3 days.

(D)The service of an affected individual shall no longer be eligible for treatment under subparagraph (B) if such service occurs after the individual—

(i)

is transferred to a supervisory or administrative position related to the activities of the former covered position of the individual; or

(ii)

meets the age and service requirements that would subject the individual to mandatory separation under section 8425 if such individual had remained in the former covered position.

(E)

(F)

Nothing in this paragraph shall be construed to apply to such affected individual any other pay-related laws or regulations applicable to a covered position.

(e)An employee who is separated from the service, except by removal for cause on charges of misconduct or delinquency—

(1)

after completing 25 years of service as an air traffic controller, or

(2)

after becoming 50 years of age and completing 20 years of service as an air traffic controller,

is entitled to an annuity.

(f)A Member who is separated from the service, except by resignation or expulsion—

(1)

after completing 25 years of service, or

(2)

after becoming 50 years of age and completing 20 years of service,

is entitled to an annuity.

(g)

(1)

An employee or Member who is separated from the service after attaining the applicable minimum retirement age under subsection (h) and completing 10 years of service is entitled to an annuity. This subsection shall not apply to an employee or Member who is entitled to an annuity under any other provision of this section.

(2)

An employee or Member entitled to an annuity under this subsection may defer the commencement of such annuity by written election. The date to which the commencement of the annuity is deferred may not precede the 31st day after the date of filing the election, and must precede the date on which the employee or Member becomes 62 years of age.

(3)

The Office shall prescribe regulations under which an election under paragraph (2) shall be made.

(h)

(1)The applicable minimum retirement age under this subsection is—

(A)

for an individual whose date of birth is before January 1, 1948, 55 years of age;

(B)

for an individual whose date of birth is after December 31, 1947, and before January 1, 1953, 55 years of age plus the number of months in the age increase factor determined under paragraph (2)(A);

(C)

for an individual whose date of birth is after December 31, 1952, and before January 1, 1965, 56 years of age;

(D)

for an individual whose date of birth is after December 31, 1964, and before January 1, 1970, 56 years of age plus the number of months in the age increase factor determined under paragraph (2)(B); and

(E)

for an individual whose date of birth is after December 31, 1969, 57 years of age.

(2)

(A)

For an individual whose date of birth occurs during the 5-year period consisting of calendar years 1948 through 1952, the age increase factor shall be equal to two-twelfths times the number of months in the period beginning with January 1948 and ending with December of the year in which the date of birth occurs.

(B)

For an individual whose date of birth occurs during the 5-year period consisting of calendar years 1965 through 1969, the age increase factor shall be equal to two-twelfths times the number of months in the period beginning with January 1965 and ending with December of the year in which the date of birth occurs.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 524; amended Pub. L. 99–556, title I, § 105(a), Oct. 27, 1986, 100 Stat. 3131; Pub. L. 101–428, § 3(a), Oct. 15, 1990, 104 Stat. 929; Pub. L. 105–261, div. C, title XXXI, § 3154(g), Oct. 17, 1998, 112 Stat. 2255; Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(1)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 110–161, div. E, title V, § 535(b)(2), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 117–225, § 3(b)(1), Dec. 9, 2022, 136 Stat. 2294.)

5 - 4 - 7 - 3 - 2 - 4 Phased retirement

(a)For the purposes of this section—

(1)

the term “composite retirement annuity” means the annuity computed when a phased retiree attains full retirement status;

(2)

the term “full retirement status” means that a phased retiree has ceased employment and is entitled, upon application, to a composite retirement annuity;

(3)

the term “phased employment” means the less-than-full-time employment of a phased retiree;

(4)the term “phased retiree” means a retirement-eligible employee who—

(A)

makes an election under subsection (b); and

(B)

has not entered full retirement status;

(5)

the term “phased retirement annuity” means the annuity payable under this section before full retirement;

(6)

the term “phased retirement percentage” means the percentage which, when added to the working percentage for a phased retiree, produces a sum of 100 percent;

(7)

(8)

the term “phased retirement status” means that a phased retiree is concurrently employed in phased employment and eligible to receive a phased retirement annuity;

(9)the term “retirement-eligible employee”—

(A)

means an individual who, if the individual separated from the service, would meet the requirements for retirement under subsection (a) or (b) of section 8412; and

(B)does not include—

(i)

an individual who, if the individual separated from the service, would meet the requirements for retirement under subsection (d) or (e) of section 8412; but

(ii)

does not include an employee described in section 8425 after the date on which the employee is required to be separated from theservice by reason of such section; and

(10)the term “working percentage” means the percentage of full-time employment equal to the quotient obtained by dividing—

(A)

the number of hours per pay period to be worked by a phased retiree, as scheduled in accordance with subsection (b)(2); by

(B)

the number of hours per pay period to be worked by an employeeserving in a comparable position on a full-time basis.

(b)

(1)

(2)

(A)

Subject to subparagraph (B), at the time of entering phased retirement status, a phased retiree shall be appointed to a position for which the working percentage is 50 percent.

(B)

The Director may, by regulation, provide for working percentagesdifferent from the percentage specified under subparagraph (A), which shall be not less than 20 percent and not more than 80 percent.

(C)

The working percentage for a phased retiree may not be changed during the phased retiree’s phased retirement period.

(D)

(i)

Not less than 20 percent of the hours to be worked by a phased retiree shall consist of mentoring.

(ii)

The Director may, by regulation, provide for exceptions to the requirement under clause (i).

(iii)

(3)A phased retiree—

(A)

may not be employed in more than one position at any time; and

(B)

may transfer to another position in the same or a different agency, only if the transfer does not result in a change in the working percentage.

(4)

A retirement-eligible employee may make not more than one election under this subsection during the retirement-eligible employee’s lifetime.

(5)

A retirement-eligible employee who makes an election under this subsection may not make an election under section 8420a.

(c)

(1)Except as otherwise provided under this subsection, the phased retirement annuity for a phased retiree is the product obtained by multiplying—

(A)

the amount of an annuity computed under section 8415 that would have been payable to the phased retiree if, on the date on which thephased retiree enters phased retirement status, the phased retiree had separated from service and retired under section 8412 (a) or (b); by

(B)

the phased retirement percentage for the phased retiree.

(2)

A phased retirement annuity shall be paid in addition to the basic pay for the position to which a phased retiree is appointed during the phased employment.

(3)

A phased retirement annuity shall be adjusted in accordance with section 8462.

(4)

(A)

(B)

(5)

(A)

Any deposit, or election of an actuarial annuity reduction in lieu of a deposit, for military service or for creditable civilian service for which retirement deductions were not made or refunded, shall be made by a retirement-eligible employee at or before the time the retirement-eligible employee enters phased retirement status. No such deposit may be made, or actuarial adjustment in lieu thereof elected, at the time aphased retiree enters full retirement status.

(B)

(6)

A phased retirement annuity shall commence on the date on which aphased retiree enters phased employment.

(7)

No unused sick leave credit may be used in the computation of the phased retirement annuity.

(d)

All basic pay not in excess of the full-time rate of pay for the position to which a phased retiree is appointed shall be deemed to be basic pay for purposes of sections 8422 and 8423.

(e)

(f)

(1)Except as provided otherwise under this subsection, a composite retirement annuity is a single annuity computed under regulations prescribed by the Director, equal to the sum of—

(A)

the amount of the phased retirement annuity as of the date of full retirement, including any adjustments made under section 8462; and

(B)the product obtained by multiplying—

(i)

the amount of an annuity computed under section 8412 that would have been payable at the time of full retirement if the individual had not elected a phased retirement and as if the individual was employed on a full-time basis in the position occupied during the phased retirement period and before any adjustment to provide for a survivor annuity; by

(ii)

the working percentage.

(2)

After computing a composite retirement annuity under paragraph (1), theDirector shall adjust the amount of the annuity for any applicable reductions for a survivor annuity.

(3)

A composite retirement annuity shall be adjusted in accordance with section 8462, except that subsection (c)(1) of that section shall not apply.

(4)

(g)

(1)

Under such procedures and conditions as the Director may provide, and with the concurrence of the head of employing agency, a phased retiree may elect to terminate phased retirement status and return to a full-time work schedule.

(2)

Upon entering a full-time work schedule based on an election under paragraph (1), the phased retirement annuity of a phased retiree shall terminate.

(3)

After termination of the phased retirement annuity under this subsection, the individual’s rights under this chapter shall be determined based on the law in effect at the time of any subsequent separation fromservice. For purposes of this chapter, at the time of the subsequent separation from service, the phased retirement period shall be treated as if it had been a period of part-time employment with the work schedule described in subsection (b)(2).

(h)For purposes of subchapter IV—

(1)

the death of a phased retiree shall be deemed to be the death in service of an employee;

(2)

except for purposes of section 8442(b)(1)(A)(i), the phased retirement period shall be deemed to have been a period of part-time employment with the work schedule described in subsection (b)(2) of this section; and

(3)

for purposes of section 8442(b)(1)(A)(i), the phased retiree shall be deemed to have been at the full-time rate of pay for the position occupied.

(i)

Employment of a phased retiree shall not be deemed to be part-time career employment, as defined in section 3401(2).

(j)

A phased retiree is not eligible to receive an annuity supplement under section 8421.

(k)

For purposes of subchapter III, a phased retiree shall be deemed to be anemployee.

(l)

For purposes of section 8445(d), retirement shall be deemed to occur on the date on which a phased retiree enters into full retirement status.

(m)

A phased retiree is not eligible to apply for an annuity under subchapter V.

(n)

A phased retiree is not subject to section 8468.

(o)

For purposes of chapter 87, a phased retiree shall be deemed to be receivingbasic pay at the rate of a full-time employee in the position to which the phased retiree is appointed.

(Added Pub. L. 112–141, div. F, title I, § 100121(b)(1), July 6, 2012, 126 Stat. 910.)

5 - 4 - 7 - 3 - 2 - 5 Deferred retirement

(a)

An employee or Member who is separated from the service, or transferred to a position in which the employee or Member does not continue subject to this chapter, after completing 5 years of service is entitled to an annuity beginning at the age of 62 years.

(b)

(1)

An employee or Member who is separated from the service, or transferred to a position in which the employee or Member does not continue subject to this chapter, after completing 10 years of service but before attaining the applicable minimum retirement age under section 8412(h) is entitled to an annuity beginning on the date designated by theemployee or Member in a written election under this subsection. The date designated under this subsection may not precede the date on which theemployee or Member attains such minimum retirement age and must precede the date on which the employee or Member becomes 62 years of age.

(2)The election of an annuity under this subsection shall not be effective unless—

(A)

it is made at such time and in such manner as the Office shall by regulation prescribe; and

(B)

the employee or Member will not otherwise be eligible to receive an annuity within 31 days after filing the election.

(3)

The election of an annuity under this subsection extinguishes the right of the employee or Member to receive any other annuity based on the service on which the annuity under this subsection is based.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 525; amended Pub. L. 99–556, title I, § 105(b)(1), Oct. 27, 1986, 100 Stat. 3132.)

5 - 4 - 7 - 3 - 2 - 6 Early retirement

(a)

(1)

A member of the Senior Executive Service who is removed from the Senior Executive Service for less than fully successful executive performance (as determined under subchapter II of chapter 43 of this title) after completing 25 years of service, or after becoming 50 years of age and completing 20 years of service, is entitled to an annuity.

(2)

A member of the Defense Intelligence Senior Executive Service or the Senior Cryptologic Executive Service who is removed from such service for failure to be recertified as a senior executive or for less than fully successful executive performance after completing 25 years of service, or after becoming 50 years of age and completing 20 years of service, is entitled to an annuity.

(3)

(b)

(1)Except as provided in paragraphs (2) and (3), an employee who—

(A)

is separated from the service involuntarily, except by removal for cause on charges of misconduct or delinquency; or

(B)

(i)

(ii)

is serving under an appointment that is not time limited;

(iii)

has not been duly notified that such employee is to be involuntarily separated for misconduct or unacceptable performance;

(iv)is separate [1] from the service voluntarily during a period in which, as determined by the Office of Personnel Management (upon request of the agency) under regulations prescribed by the Office—

(I)

(II)

a significant percentage of employees serving in such agency (or component) are likely to be separated or subject to an immediate reduction in the rate of basic pay (without regard to subchapter VI of chapter 53, or comparable provisions); or

(III)

identified as being in positions which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively; and

(v)as determined by the agency under regulations prescribed by the Office, is within the scope of the offer of voluntary early retirement, which may be made on the basis of—

(I)

1 or more organizational units;

(II)

1 or more occupational series or levels;

(III)

1 or more geographical locations;

(IV)

specific periods;

(V)

skills, knowledge, or other factors related to a position; or

(VI)

any appropriate combination of such factors.[2]

after completing 25 years of service, or after becoming 50 years of age and completing 20 years of service, is entitled to an annuity.

(2)

An employee under paragraph (1) who is separated as described in subparagraph (A) of such paragraph is not entitled to an annuity under this subsection if the employee has declined a reasonable offer of another position in the employee’s agency for which the employee is qualified, and the offered position is not lower than 2 grades (or pay levels) below the employee’s grade (or pay level) and is within the employee’s commuting area.

(3)

Paragraph (1) shall not apply to an employee entitled to an annuity under subsection (d)(1) or (e) of section 8412.

(c)

(1)

An employee who was hired as a military reserve technician on or before February 10, 1996 (under the provisions of this title in effect before that date), and who is separated from technician service, after becoming 50 years of age and completing 25 years of service, by reason of being separated from the Selected Reserve of the employee’s reserve component or ceasing to hold the military grade specified by the Secretary concerned for the position held by the employee is entitled to an annuity.

(2)An employee who is initially hired as a military technician (dual status) after February 10, 1996, and who is separated from the Selected Reserve or ceases to hold the military grade specified by the Secretary concerned for the position held by the technician—

(A)

after completing 25 years of service as a military technician (dual status), or

(B)

after becoming 50 years of age and completing 20 years of service as a military technician (dual status),

is entitled to an annuity.

(d)

(A)has—

(i)

completed 25 years of service; or

(ii)

become 50 years of age and completed 20 years of service; and

(B)

is eligible for the annuity under paragraph (2) or (3).

(2)

(A)For the purposes of paragraph (1), an employee referred to in that paragraph is eligible for an immediate annuity under this paragraph if the employee—

(i)

is separated from the service involuntarily other than for cause; and

(ii)

(B)

(3)For the purposes of paragraph (1), an employee referred to in that paragraph is eligible for an immediate annuity under this paragraph if the employee satisfies all of the following conditions:

(A)

(B)

(C)

The employee is serving under an appointment that is not limited by time.

(D)

The employee is not in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance.

(E)The employee is within the scope of an offer of voluntary early retirement, as defined on the basis of one or more of the following objective criteria:

(i)

One or more organizational units.

(ii)

One or more occupational groups, series, or levels.

(iii)

One or more geographical locations.

(iv)

Any other similar objective and nonpersonal criteria that the Office of Personnel Management determines appropriate.

(4)Under regulations prescribed by the Office of Personnel Management, the determinations of whether an employee meets—

(A)

the requirements of subparagraph (A) of paragraph (3) shall be made by the Office upon the request of the Secretary of Defense; and

(B)

the requirements of subparagraph (E) of such paragraph shall be made by the Secretary of Defense.

(5)

A determination of which employees are within the scope of an offer of early retirement shall be made only on the basis of consistent and well-documented application of the relevant criteria.

(6)In this subsection, the term “major organizational adjustment” means any of the following:

(A)

A major reorganization.

(B)

A major reduction in force.

(C)

A major transfer of function.

(D)A workforce restructuring—

(i)

to meet mission needs;

(ii)

to achieve one or more reductions in strength;

(iii)

to correct skill imbalances; or

(iv)

to reduce the number of high-grade, managerial, supervisory, or similar positions.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 526; amended Pub. L. 100–325, § 2(m), May 30, 1988, 102 Stat. 583; Pub. L. 101–194, title V, § 506(b)(9), Nov. 30, 1989, 103 Stat. 1759; Pub. L. 105–261, div. A, title XI, § 1109(b), Oct. 17, 1998, 112 Stat. 2144; Pub. L. 106–58, title VI, § 651(b), Sept. 29, 1999, 113 Stat. 480; Pub. L. 106–65, div. A, title V, § 522(b), Oct. 5, 1999, 113 Stat. 597; Pub. L. 106–398, § 1 [[div. A], title XI, § 1152(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–321; Pub. L. 107–296, title XIII, §§ 1313(b)(2), 1321(a)(5)(A), Nov. 25, 2002, 116 Stat. 2295, 2297; Pub. L. 117–225, § 3(b)(2)(A)(i), Dec. 9, 2022, 136 Stat. 2295.)

5 - 4 - 7 - 3 - 2 - 7 Computation of basic annuity

(a)

Except as otherwise provided in this section, the annuity of an employeeretiring under this subchapter is 1 percent of that individual’s average paymultiplied by such individual’s total service.

(b)

The annuity of a Member, or former Member with title to a Member annuity, retiring under this subchapter is computed under subsection (a), except that if the individual has had at least 5 years of service as a Member or Congressional employee, or any combination thereof, so much of the annuity as is computed with respect to either such type of service (or a combination thereof), not exceeding a total of 20 years, shall be computed by multiplying 17⁄10 percent of the individual’s average pay by the years of such service.

(c)

The annuity of a Congressional employee, or former Congressional employee, retiring under this subchapter is computed under subsection (a), except that if the individual has had at least 5 years of service as a Congressional employee orMember, or any combination thereof, so much of the annuity as is computed with respect to either such type of service (or a combination thereof), not exceeding a total of 20 years, shall be computed by multiplying 17⁄10 percent of the individual’s average pay by the years of such service.

(d)

Notwithstanding any other provision of law, the annuity of an individual described in subsection (b) or (c) who is a revised annuity employee or a further revised annuity employee shall be computed in the same manner as in the case of an individual described in subsection (a).

(e)The annuity of an employee retiring under subsection (d)(1) or (e) of section 8412 or under subsection (a), (b), or (c) of section 8425 is—

(1)

17⁄10 percent of that individual’s average pay multiplied by so much of such individual’s total service as does not exceed 20 years; plus

(2)

1 percent of that individual’s average pay multiplied by so much of such individual’s total service as exceeds 20 years.

(f)The annuity of an air traffic controller or former air traffic controller retiring under section 8412(a) is computed under subsection (a), except that if the individual has at least 5 years of service in any combination as—

(1)

an air traffic controller as defined by section 2109(1)(A)(i);

(2)

a first level supervisor of an air traffic controller as defined by section 2109(1)(A)(i); or

(3)

a second level supervisor of an air traffic controller as defined by section 2109(1)(A)(i);

so much of the annuity as is computed with respect to such type of serviceshall be computed by multiplying 1 7/10 percent of the individual’s average pay by the years of such service.

(g)

(1)In computing an annuity under this subchapter for an employee whoseservice includes service performed on a part-time basis—

(A)

(B)

the benefit so computed shall then be multiplied by a fraction equal to the ratio which the employee’s actual service, as determined by prorating the employee’s total service to reflect the service that was performed on a part-time basis, bears to the total service that would be creditable for the employee if all of the service had been performed on a full-time basis.

(2)

For the purpose of this subsection, employment on a part-time basis shall not be considered to include employment on a temporary or intermittent basis.

(h)

(1)

The annuity of an employee or Member retiring under section 8412(g) or 8413(b) is computed in accordance with applicable provisions of this section, except that the annuity shall be reduced by five-twelfths of 1 percent for each full month by which the commencement date of the annuity precedes the sixty-second anniversary of the birth of the employee or Member.

(2)

(A)

Paragraph (1) does not apply in the case of an employee or Member retiring under section 8412(g) or 8413(b) if the employee or Member would satisfy the age and service requirements for title to an annuity under section 8412(a), (b), (d)(1)(B), (e)(2), or (f)(2), determined as if the employee or Member had, as of the date of separation, attained the age specified in subparagraph (B).

(B)

A determination under subparagraph (A) shall be based on how old the employee or Member will be as of the date on which the annuity under section 8412(g) or 8413(b) is to commence.

(i)

(1)

In applying subsection (a) with respect to an employee under paragraph (2), the percentage applied under such subsection shall be 1.1 percent, rather than 1 percent.

(2)This subsection applies in the case of an employee who—

(A)

retires entitled to an annuity under section 8412; and

(B)

at the time of the separation on which entitlement to the annuity is based, is at least 62 years of age and has completed at least 20 years of service;

but does not apply in the case of a Congressional employee, military technician (dual status), law enforcement officer, member of the Supreme Court Police, firefighter, nuclear materials courier, air traffic controller, or customs and border protection officer [1]

(j)

The annuity of a Member who has served in a position in the executive branch for which the rate of basic pay was reduced for the duration of the service of theMember in that position to remove the impediment to the appointment of theMember imposed by article I, section 6, clause 2 of the Constitution, shall, subject to a deposit in the Fund as provided under section 8422(g), be computed as though the rate of basic pay which would otherwise have been in effect during that period of service had been in effect.

(k)

(1)

For purposes of this subsection, the term “physicians comparability allowance” refers to an amount described in section 8331(3)(H).

(2)

(3)

If the total amount of service performed, on or after the date of the enactment of this subsection, as a Government physicianis:	Then, the percentage allowable is:
Less than 2 years	0
At least 2 but less than 4 years	25
At least 4 but less than 6 years	50
At least 6 but less than 8 years	75
At least 8 years	100.

(A)

an annuity under section 8452; and

(B)

a survivor annuity under subchapter IV, if based on the service of an individual who dies before separating from service.

(l)The annuity of an employee retiring under this chapter with service credited under section 8411(b)(6) shall be reduced by the amount necessary to ensure that the present value of the annuity payable to the employee under this subchapter is actuarially equivalent to the present value of the annuity that would be payable to the employee under this subchapter if it were computed—

(1)

on the basis of service that does not include service credited under section 8411(b)(6); and

(2)

assuming the employee separated from service on the actual date of the separation of the employee.

The amount of the reduction shall be computed under regulations prescribed by the Office of Personnel Management for the administration of this subsection.

(m)

(1)

In computing an annuity under this subchapter, the total service of an employee who retires from the position of a registered nurse with the Veterans Health Administration on an immediate annuity, or dies while employed in that position leaving any survivor entitled to an annuity, includes the days of unused sick leave to the credit of that employee under a formal leave system, except that such days shall not be counted in determining average pay or annuity eligibility under this subchapter.

(2)

(A)

Except as provided in paragraph (1), in computing an annuity under this subchapter, the total service of an employee who retires on an immediate annuity or who dies leaving a survivor or survivors entitled to annuity includes the applicable percentage of the days of unused sick leave to his credit under a formal leave system and for which days theemployee has not received payment, except that these days will not be counted in determining average pay or annuity eligibility under this subchapter. For purposes of this subsection, in the case of any suchemployee who is excepted from subchapter I of chapter 63 under section 6301(2)(x) through (xiii), the days of unused sick leave to his credit include any unused sick leave standing to his credit when he was excepted from such subchapter.

(B)For purposes of subparagraph (A), the term “applicable percentage” means—

(i)

50 percent in the case of an annuity, entitlement to which is based on a death or other separation occurring during the period beginning on the date of enactment of this paragraph and ending on December 31, 2013; and

(ii)

100 percent in the case of an annuity, entitlement to which is based on a death or other separation occurring after December 31, 2013.

(n)

In the case of any annuity computation under this section that includes, in the aggregate, at least 2 months of credit under section 8411(d) for any period while receiving benefits under subchapter I of chapter 81, the percentage otherwise applicable under this section for that period so credited shall be increased by 1 percentage point.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 527; amended Pub. L. 99–556, title I, § 105(b)(2), Oct. 27, 1986, 100 Stat. 3132; Pub. L. 103–283, title III, § 307(b)(2), July 22, 1994, 108 Stat. 1442; Pub. L. 105–61, title V, § 516(a)(7), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 105–261, div. C, title XXXI, § 3154(h), Oct. 17, 1998, 112 Stat. 2255; Pub. L. 106–65, div. A, title V, § 522(c)(1), Oct. 5, 1999, 113 Stat. 597; Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(2)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 106–571, § 3(c)(1), Dec. 28, 2000, 114 Stat. 3055; Pub. L. 107–107, div. A, title XI, § 1132(b)(3), Dec. 28, 2001, 115 Stat. 1244; Pub. L. 107–135, title I, § 122(a), Jan. 23, 2002, 115 Stat. 2451; Pub. L. 108–92, § 1(a), Oct. 3, 2003, 117 Stat. 1160; Pub. L. 108–176, title II, § 226(b)(1), Dec. 12, 2003, 117 Stat. 2530; Pub. L. 110–161, div. E, title V, § 535(b)(3), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 111–84, div. A, title XIX, § 1901(a), Oct. 28, 2009, 123 Stat. 2615; Pub. L. 112–96, title V, § 5001(c)(1), Feb. 22, 2012, 126 Stat. 199; Pub. L. 113–67, div. A, title IV, § 401(d), Dec. 26, 2013, 127 Stat. 1185; Pub. L. 114–190, title II, § 2304(a), July 15, 2016, 130 Stat. 640; Pub. L. 117–225, § 3(b)(2)(A)(ii), Dec. 9, 2022, 136 Stat. 2295.)

5 - 4 - 7 - 3 - 2 - 8 Survivor reduction for a former spouse

(a)

(1)

If an employee or Member is married at the time of retiring under this chapter, the reduction described in section 8419(a) shall be made unless theemployee or Member and the spouse jointly waive, by written election, any right which the spouse may have to a survivor annuity under section 8442 based on the service of such employee or Member. A waiver under this paragraph shall be filed with the Office under procedures prescribed by theOffice.

(2)Notwithstanding paragraph (1), an employee or Member who is married at the time of retiring under this chapter may waive the annuity for a surviving spouse without the spouse’s consent if the employee or Member establishes to the satisfaction of the Office (in accordance with regulations prescribed by the Office)—

(A)

that the spouse’s whereabouts cannot be determined; or

(B)

that, due to exceptional circumstances, requiring the employee orMember to seek the spouse’s consent would otherwise be inappropriate.

(3)

Except as provided in subsection (d), a waiver made under this subsection shall be irrevocable.

(b)

(1)

Upon remarriage, a retired employee or Member who was married at the time of retirement (including an employee or Member whose annuity was not reduced to provide a survivor annuity for the employee’s or Member’s spouse or former spouse as of the time of retirement) may irrevocably elect during such marriage, in a signed writing received by the Office within 2 years after such remarriage or, if later, within 2 years after the death or remarriage of any former spouse of such employee or Member who was entitled to a survivor annuity under section 8445 (or of the last such surviving former spouse, if there was more than one), a reduction in theemployee’s or Member’s annuity under section 8419(a) for the purpose of providing an annuity for such employee’s or Member’s spouse in the event such spouse survives the employee or Member.

(2)

The election and reduction shall be effective the first day of the second month after the election is received by the Office, but not less than 9 months after the date of the remarriage.

(3)An election to provide a survivor annuity to an individual under this subsection—

(A)

shall prospectively void any election made by the employee orMember under section 8420 with respect to such individual; or

(B)

shall, if an election was made by the employee or Member under section 8420 with respect to a different individual, prospectively void such election if appropriate written application is made by suchemployee or Member at the time of making the election under this subsection.

(4)Any election under this subsection made by an employee or Member on behalf of an individual after the retirement of such employee or Member shall not be effective if—

(A)

the employee or Member was married to such individual at the time of retirement; and

(B)

the annuity rights of such individual based on the service of such employee or Member were then waived under subsection (a).

(c)

(1)

An employee or Member who is unmarried at the time of retiring under this chapter and who later marries may irrevocably elect, in a signed writing received by the Office within 2 years after such employee or Member marries or, if later, within 2 years after the death or remarriage of any former spouse of such employee or Member who was entitled to a survivor annuity under section 8445 (or of the last such surviving former spouse, if there was more than one), a reduction in the current annuity of the retiredemployee or Member, in accordance with section 8419(a).

(2)The election and reduction shall take effect the first day of the first month beginning 9 months after the date of marriage. Any such election to provide a survivor annuity for an individual—

(A)

shall prospectively void any election made by the employee orMember under section 8420 with respect to such individual; or

(B)

(d)

(1)An employee or Member—

(A)

who is married on the date of retiring under this chapter, and

(B)

with respect to whose spouse a waiver under subsection (a) has been made,

may, during the 18-month period beginning on such date, elect to have a reduction made under section 8419 in order to provide a survivor annuity under section 8442 for such spouse.

(2)

(A)

An election under this subsection shall not be effective unless the amount described in subparagraph (B) is deposited into the Fund before the expiration of the 18-month period referred to in paragraph (1).

(B)The amount to be deposited under this subparagraph is equal to the sum of—

(i)

the difference (for the period between the date on which the annuity of the former employee or Member commences and the date on which reductions pursuant to the election under this subsection commence) between the amount paid to the former employee or Member from the Fund under this chapter and the amount which would have been paid if such election had been made at the time of retirement; and

(ii)

the costs associated with providing for the election under this subsection.

The amount to be deposited under clause (i) shall include interest, computed at the rate of 6 percent a year.

(3)

An annuity which is reduced pursuant to an election by a former employee or Member under this subsection shall be reduced by the same percentage as was in effect under section 8419 as of the date of the employee’s or Member’s retirement.

(4)

Rights and obligations under this chapter resulting from an election under this subsection shall be the same as the rights and obligations which would have resulted had the election been made at the time of retirement.

(5)

The Office shall inform each employee and Member who is eligible to make an election under this subsection of the right to make such election and the procedures and deadlines applicable in making any such election.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 528.)

5 - 4 - 7 - 3 - 2 - 9 Survivor elections; deposit; offsets

(a)

(1)

An individual who makes an election under subsection (b) or (c) of section 8416 or section 8417(b) which is required to be made within 2 years after the date of a prescribed event shall deposit into the Fund an amount determined by the Office (as nearly as may be administratively feasible) to reflect the amount by which the annuity of such individual would have been reduced if the election had been in effect since the date of retirement (or, if later, and in the case of an election under such section 8416(b), since the date the previous reduction in the annuity of such individual was terminated under paragraph (1) or (2) of section 8419(b)), plus interest.

(2)

Interest under paragraph (1) shall be computed at the rate of 6 percent a year.

(b)

The Office shall, by regulation, provide for payment of the deposit required under subsection (a) by a reduction in the annuity of the employee or Member.The reduction shall, to the extent practicable, be designed so that the present value of the future reduction is actuarially equivalent to the deposit required under subsection (a), except that the total reductions in the annuity of an employee or Member to pay deposits required by this section shall not exceed 25 percent of the annuity computed under section 8415 or section 8452, including adjustments under section 8462. The reduction required by this subsection, which shall be effective at the same time as the election under section 8416(b) and (c) or section 8417(b), shall be permanent and unaffected by any future termination of the marriage or the entitlement of the former spouse. Such reduction shall be independent of and in addition to the reduction required under section 8416(b) and (c) or section 8417(b).

(c)Subsections (a) and (b) shall not apply if—

(1)

the employee or Member makes an election under section 8416(b) or (c) after having made an election under section 8420; and

(2)

the election under such section 8420 becomes void under subsection (b)(3) or (c)(2) of such section 8416.

(d)

The Office shall prescribe regulations under which the survivor of an employee or Member may make a deposit under this section.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 530; amended Pub. L. 103–66, title XI, § 11004(b), Aug. 10, 1993, 107 Stat. 412.)

5 - 4 - 7 - 3 - 2 - 10 Survivor reductions; computation

(a)

(1)

Except as provided in paragraph (2), the annuity of an annuitantcomputed under section 8415, or under section 8452 (including subsection (a)(2) of such section, if applicable) or one-half of the annuity, if jointly designated for this purpose by the employee or Member and the spouse of the employee or Member under procedures prescribed by the Office of Personnel Management, shall be reduced by 10 percent if a survivor annuity, or a combination of survivor annuities, under section 8442 or 8445 (or both) are to be provided for.

(2)

(A)

If no survivor annuity under section 8442 is to be provided for, but one or more survivor annuities under section 8445 involving a total of less than the entirety of the amount referred to in subsection (b)(2) of such section are to be provided for, the annuity of the annuitantinvolved (as computed under section 8415, or under section 8452 (including subsection (a)(2) of such section, if applicable)) or one-half of the annuity, if jointly designated for this purpose by the employee orMember and the spouse of the employee or Member under procedures prescribed by the Office of Personnel Management, shall be reduced by an appropriate percentage determined under subparagraph (B).

(B)

The Office shall prescribe regulations under which an appropriate reduction under this paragraph, not to exceed a total of 10 percent, shall be made.

(b)

(1)Any reduction in an annuity for the purpose of providing a survivorannuity for the current spouse of a retired employee or Member shall be terminated for each full month—

(A)

after the death of the spouse; or

(B)

(2)Any reduction in an annuity for the purpose of providing a survivorannuity for a former spouse of a retired employee or Member shall be terminated for each full month after the former spouse remarries before reaching age 55 or dies. This reduction shall be replaced by appropriate reductions under subsection (a) if the retired employee or Member has one or more of the following:

(A)

another former spouse who is entitled to a survivor annuity under section 8445;

(B)

a current spouse to whom the employee or Member was married at the time of retirement and with respect to whom a survivor annuity was not waived under section 8416(a) (or, if waived, with respect to whom an election under section 8416(d) has been made); or

(C)

a current spouse whom the employee or Member married after retirement and with respect to whom an election has been made under subsection (b) or (c) of section 8416.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 531; amended Pub. L. 100–238, title I, § 131(a), Jan. 8, 1988, 101 Stat. 1759.)

5 - 4 - 7 - 3 - 2 - 11 Insurable interest reductions

(a)

(1)

At the time of retiring under section 8412, 8413, or 8414, an employee orMember who is found to be in good health by the Office may elect to have such employee’s or Member’s annuity (as computed under section 8415) reduced under paragraph (2) in order to provide an annuity under section 8444 for an individual having an insurable interest in the employee orMember. Such individual shall be designated by the employee or Member in writing.

(2)

The annuity of the employee or Member making the election is reduced by 10 percent, and by 5 percent for each full 5 years the individual named is younger than the retiring employee or Member, except that the total reduction may not exceed 40 percent.

(3)

An annuity which is reduced under this subsection shall, effective the first day of the month following the death of the individual named under this subsection, be recomputed and paid as if the annuity had not been so reduced.

(b)

(1)

In the case of a married employee or Member, an election under this section on behalf of the spouse may be made only if any right of such spouse to a survivor annuity based on the service of such employee orMember is waived in accordance with section 8416(a).

(2)

Paragraph (1) does not apply in the case of an employee or Member if such employee or Member has a former spouse who would become entitled to an annuity under section 8445 as a survivor of such employee or Member.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 532.)

5 - 4 - 7 - 3 - 2 - 12 Alternative forms of annuities

(a)

The Office shall prescribe regulations under which any employee or Member who has a life-threatening affliction or other critical medical condition may, at the time of retiring under this subchapter, elect annuity benefits under this section instead of any other benefits under this subchapter, and any benefits under subchapter IV of this chapter, based on the service of the employee orMember.

(1)an alternative which provides for—

(A)

payment of the lump-sum credit (excluding interest) to the employee or Member; and

(B)

payment of an annuity to the employee or Member for life; and

(2)in the case of an employee or Member who is married at the time of retirement, an alternative which provides for—

(A)

payment of the lump-sum credit (excluding interest) to the employee or Member; and

(B)

payment of an annuity to the employee or Member for life, with asurvivor annuity payable for the life of a surviving spouse.

(c)Each alternative provided for under subsection (b) shall, to the extent practicable, be designed such that the present value of the benefits provided under such alternative (including any lump-sum credit) is actuarially equivalent to the sum of—

(1)

the present value of the annuity which would otherwise be provided under this subchapter, as computed under section 8415; and

(2)

the present value of the annuity supplement which would otherwise be provided (if any) under section 8421.

(d)An employee or Member who, at the time of retiring under this subchapter—

(1)

is married, shall be ineligible to make an election under this section unless a waiver is made under section 8416(a); or

(2)

has a former spouse, shall be ineligible to make an election under this section if the former spouse is entitled to benefits under section 8445 or 8467 (based on the service of the employee or Member) under the terms of a decree of divorce or annulment, or a court order or court-approved property settlement incident to any such decree, with respect to which the Office has been duly notified.

(e)

An employee or Member who is married at the time of retiring under this subchapter and who makes an election under this section may, during the 18-month period beginning on the date of retirement, make the election provided for under section 8416(d), subject to the deposit requirement thereunder.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 532; amended Pub. L. 101–508, title VII, § 7001(a)(1), Nov. 5, 1990, 104 Stat. 1388–327; Pub. L. 103–66, title XI, § 11002(a), Aug. 10, 1993, 107 Stat. 409.)

5 - 4 - 7 - 3 - 2 - 13 Annuity supplement

(a)

(1)

Subject to paragraph (3), an individual shall, if and while entitled to an annuity under subsection (a), (b), (d)(1), or (e) of section 8412, or under section 8414(c), also be entitled to an annuity supplement under this section.

(2)

Subject to paragraph (3), an individual shall, if and while entitled to an annuity under section 8412(f), or under subsection (a) or (b) of section 8414, also be entitled to an annuity supplement under this section if such individual is at least the applicable minimum retirement age under section 8412(h).

(3)

(A)

An individual whose entitlement to an annuity under section 8412 or 8414 does not commence before age 62 is not entitled to an annuity supplement under this section.

(B)

An individual entitled to an annuity supplement under this section ceases to be so entitled after the last day of the month preceding the first month for which such individual would, on proper application, be entitled to old-age insurance benefits under title II of the Social Security Act, but not later than the last day of the month in which such individual attains age 62.

(b)

(1)The amount of the annuity supplement of an annuitant under this section for any month shall be equal to the product of—

(A)

an amount determined under paragraph (2), multiplied by

(B)

a fraction, as described in paragraph (3).

(2)The amount under this paragraph for an annuitant is an amount equal to the old-age insurance benefit which would be payable to such annuitantunder title II of the Social Security Act (without regard to sections 203, 215(a)(7), and 215(d)(5) of such Act) upon attaining age 62 and filing application therefor, determined as if the annuitant had attained such age and filed application therefor, and were a fully insured individual (as defined in section 214(a) of such Act), on January 1 of the year in which such annuitant’s entitlement to any payment under this section commences, except that the reduction of such old-age insurance benefit under section 202(q) of such Act shall be the maximum applicable for an individual born in the same year as the annuitant. In computing the primary insurance amount under section 215 of such Act for purposes of this paragraph, the number of elapsed years (referred to in section 215(b)(2)(B)(iii) of such Act and used to compute the number of benefit computation years) shall not include years beginning with the year in which such annuitant’s entitlement to any payment under this section commences, and—

(A)

only basic pay for service performed (if any) shall be taken intoaccount in computing the total wages and self-employment income of the annuitant for a benefit computation year;

(B)

for a benefit computation year which commences after the date of the separation with respect to which entitlement to the annuitant’s annuity under this subchapter is based and before the date as of which such annuitant is treated, under the preceding sentence, to have attained age 62, the total wages and self-employment income of suchannuitant for such year shall be deemed to be zero; and

(C)for a benefit computation year after age 21 which precedes the separation referred to in subparagraph (B), and during which the individual did not perform a full year of service, the total wages and self-employment income of such annuitant for such year shall be deemed to have been an amount equal to the product of—

(i)

the average total wages of all workers for that year, multiplied by

(ii)a fraction—

(I)

the numerator of which is the total basic pay of the individual for service performed in the first year thereafter in which such individual performed a full year of service; and

(II)

the denominator of which is the average total wages of all workers for the year referred to in subclause (I).

(3)The fraction under this paragraph for any annuitant is a fraction—

(A)

the numerator of which is the annuitant’s total years of service (rounding a fraction to the nearest whole number, with ½ being rounded to the next higher number), not to exceed the number under subparagraph (B); and

(B)

the denominator of which is 40.

(4)For the purpose of this subsection—

(A)

the term “benefit computation year” has the meaning provided in section 215(b)(2)(B)(i) of the Social Security Act;

(B)

the term “average total wages of all workers”, for a year, means the average of the total wages, as defined and computed under section 215(b)(3)(A)(ii)(I) of the Social Security Act for such year; and

(C)

the term “service” does not include military service.

(c)

An amount under this section shall, for purposes of section 8467, be treated in the same way as an amount computed under section 8415.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 533; amended Pub. L. 101–194, title V, § 506(b)(10), Nov. 30, 1989, 103 Stat. 1759; Pub. L. 102–378, § 2(65), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 107–296, title XIII, § 1321(a)(5)(B), Nov. 25, 2002, 116 Stat. 2297; Pub. L. 117–225, § 3(b)(2)(A)(iii), Dec. 9, 2022, 136 Stat. 2295.)

5 - 4 - 7 - 3 - 2 - 14 Reductions on account of earnings from work performed while entitled to an annuity supplement

(a)

Except as provided in subsection (c), the amount of the annuity supplement to which an individual is entitled under section 8421 for any month (determined without regard to subsection (c) of such section) shall be reduced by the amount of any excess earnings of such individual which are required to be charged to such supplement for such month, as determined under subsection (b).

(b)The amount of an individual’s excess earnings shall be charged to months as follows:

(1)

(A)

There shall be charged to each month of a year under subsection (a) an amount equal to the individual’s excess earnings (as determined under paragraph (2) with respect to such year), divided by the number of the individual’s supplement entitlement months for such year (as determined under paragraph (3)).

(B)

Notwithstanding subparagraph (A), the amount charged to a month under subsection (a) may not exceed the amount of the annuity supplement to which the individual is entitled under section 8421 for such month (determined without regard to subsection (c) of such section).

(2)The excess earnings based on which reductions under subsection (a) shall be made with respect to an individual in a year—

(A)

shall be equal to 50 percent of so much of such individual’s earningsfor the immediately preceding year as exceeds the applicable exempt amount for such preceding year; but

(B)

may not exceed the total amount of the annuity supplement payments to which such individual was entitled for such preceding year under section 8421 (determined without regard to subsection (c) of such section, and without regard to this section).

(3)

(A)

Subject to subparagraph (B), the number of an individual’s supplement entitlement months for a year shall be 12.

(B)

The number determined under subparagraph (A) shall be reduced so as not to include any month after which such individual ceases to be entitled to an annuity supplement by reason of section 8421(a)(3)(B), relating to cessation of entitlement upon attaining age 62.

(4)

(A)

For purposes of this section, and except as provided in subparagraph (B), the “earnings” and the “applicable exempt amount” of an individual shall be determined in a manner consistent with applicable provisions of section 203 of the Social Security Act.

(B)For purposes of this section—

(i)

in determining the excess earnings of any individual, only earningsattributable to periods during which such individual was entitled to an annuity supplement under section 8421 shall be considered; and

(ii)

any earnings attributable to a period before attaining the applicable retirement age under section 8412(h) shall not be considered in determining the excess earnings of an individual who retires under section 8412(d)(1) or (e), or section 8414(c).

(5)

Notwithstanding paragraphs (1) through (4), the reduction required by subsection (a) shall be effective with respect to the annuity supplement payable for each month in the 12-month period beginning on the first day of the seventh month after the end of the calendar year in which the excess earnings were earned.

(c)This section shall not apply to an individual described in section 8412(e)during any period in which the individual, after separating from the service as described in that section, is employed as an—

(1)

air traffic control instructor, or supervisor thereof, under contract with the Federal Aviation Administration, including an instructor or supervisor working at an on-site facility (such as an airport); or

(2)

air traffic controller pursuant to a contract made with the Secretary of Transportation under section 47124 of title 49.

(d)

The Office shall prescribe regulations under which this section shall be applied in the case of a reemployed annuitant.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 535; amended Pub. L. 99–556, title I, § 121, Oct. 27, 1986, 100 Stat. 3134; Pub. L. 106–394, § 3(a), Oct. 30, 2000, 114 Stat. 1630; Pub. L. 114–251, § 1, Dec. 8, 2016, 130 Stat. 1002; Pub. L. 116–92, div. A, title VI, § 608, Dec. 20, 2019, 133 Stat. 1425; Pub. L. 117–225, § 3(b)(2)(A)(iv), Dec. 9, 2022, 136 Stat. 2296; Pub. L. 117–328, div. Y, § 102, Dec. 29, 2022, 136 Stat. 5523.)

5 - 4 - 7 - 3 - 2 - 15 Deductions from pay; contributions for other service; deposits

(a)

(1)

The employing agency shall deduct and withhold from basic pay of eachemployee and Member a percentage of basic pay determined in accordance with paragraph (2).

(2)The percentage to be deducted and withheld from basic pay for any pay period shall be equal to—

(A)

the applicable percentage under paragraph (3), minus

(B)

the percentage then in effect under section 3101(a) of the Internal Revenue Code of 1986 (relating to rate of tax for old-age, survivors, and disability insurance).

(3)

(A)

The applicable percentage under this paragraph for civilian service by employees or Members other than revised annuity employees or further revised annuity employees shall be as follows:


Employee	7	January 1, 1987, to December 31, 1998.
	7.25	January 1, 1999, to December 31, 1999.
	7.4	January 1, 2000, to December 31, 2000.
	7	After December 31, 2000.
Congressional employee	7.5	January 1, 1987, to December 31, 1998.
	7.75	January 1, 1999, to December 31, 1999.
	7.9	January 1, 2000, to December 31, 2000.
	7.5	After December 31, 2000.
Member	7.5	January 1, 1987, to December 31, 1998.
	7.75	January 1, 1999, to December 31, 1999.
	7.9	January 1, 2000, to December 31, 2000.
	8	January 1, 2001, to December 31, 2002.
	7.5	After December 31, 2002.
Law enforcement officer, firefighter, member of the Capitol Police, member of the SupremeCourt Police, or air traffic controller	7.5 7.75 7.9 7.5	January 1, 1987, to December 31, 1998. January 1, 1999, to December 31, 1999. January 1, 2000, to December 31, 2000. After December 31, 2000.
Nuclear materials courier	7	January 1, 1987, to October 16, 1998.
	7.5	October 17, 1998, to December 31, 1998.
	7.75	January 1, 1999, to December 31, 1999.
	7.9	January 1, 2000, to December 31, 2000.
	7.5	After December 31, 2000.
Customs and border protection officer	7.5	After June 29, 2008.

(B)

The applicable percentage under this paragraph for civilian service by revised annuity employees shall be as follows:


Employee	9.3	After December 31, 2012.
Congressional employee	9.3	After December 31, 2012.
Member	9.3	After December 31, 2012.
Law enforcement officer, firefighter, member of the Capitol Police, member of the Supreme Court Police, or air traffic controller	9.8	After December 31, 2012.
Nuclear materials courier	9.8	After December 31, 2012.
Customs and border protection officer	9.8	After December 31, 2012.

(C)

The applicable percentage under this paragraph for civilian service by further revised annuity employees shall be as follows:


Employee	10.6	After December 31, 2013.
Congressional employee	10.6	After December 31, 2013.
Member	10.6	After December 31, 2013.
Law enforcement officer, firefighter, member of the Capitol Police, member of the Supreme Court Police, or air traffic controller	11.1	After December 31, 2013.
Nuclear materials courier	11.1	After December 31, 2013.
Customs and border protection officer	11.1	After December 31, 2013.

(b)

Each employee or Member is deemed to consent and agree to the deductions under subsection (a). Notwithstanding any law or regulation affecting the pay of an employee or Member, payment less such deductions is a full and complete discharge and acquittance of all claims and demands for regularservices during the period covered by the payment, except the right to any benefits under this subchapter, or under subchapter IV or V of this chapter, based on the service of the employee or Member.

(c)

The amounts deducted and withheld under this section shall be deposited in the Treasury of the United States to the credit of the Fund under such procedures as the Secretary of the Treasury may prescribe. Deposits made by an employee, Member, or survivor also shall be credited to the Fund.

(d)

(1)

Under such regulations as the Office may prescribe, amounts deducted under subsection (a) shall be entered on individual retirement records.

(2)

Deposit may not be required for days of unused sick leave credited under paragraph (1) or (2) of section 8415(m).

(e)

(1)

(A)

Except as provided in subparagraph (B), and subject to paragraph (6), each employee or Member who has performed military service before the date of the separation on which the entitlement to any annuity under this subchapter, or subchapter V of this chapter, is based may pay, in accordance with such regulations as the Office shall issue, to the agency by which the employee is employed, or, in the case of a Member or a Congressional employee, to the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives, as appropriate, an amount equal to 3 percent of the amount of the basic pay paid under section 204 of title 37 to the employee or Member for each period ofmilitary service after December 1956. The amount of such payments shall be based on such evidence of basic pay for military service as theemployee or Member may provide, or if the Office determines sufficient evidence has not been so provided to adequately determine basic pay for military service, such payment shall be based on estimates of suchbasic pay provided to the Office under paragraph (4).

(B)

(2)Any deposit made under paragraph (1) more than two years after the later of—

(A)

January 1, 1987; or

(B)

the date on which the employee or Member making the deposit first becomes an employee or Member following the period of military servicefor which such deposit is due,

(3)

(4)

(5)

For the purpose of survivor annuities, deposits authorized by this subsection may also be made by a survivor of an employee or Member.

(6)The percentage of basic pay under section 204 of title 37 payable under paragraph (1), with respect to any period of military service performed during—

(A)

January 1, 1999, through December 31, 1999, shall be 3.25 percent; and

(B)

January 1, 2000, through December 31, 2000, shall be 3.4 percent.

(7)

(A)

(B)

(C)

The Director of the Office of Personnel Management shall issue such regulations as are necessary to carry out this paragraph.

(f)

(1)

Each employee or Member who has performed service as a volunteer or volunteer leader under part A of title VIII of the Economic Opportunity Act of 1964, as a full-time volunteer enrolled in a program of at least 1 year’s duration under part A, B,[1] or C of title I of the Domestic Volunteer Service Act of 1973, or as a volunteer or volunteer leader under the Peace Corps Actbefore the date of the separation on which the entitlement to any annuity under this subchapter, or subchapter V of this chapter, is based may pay, in accordance with such regulations as the Office of Personnel Managementshall issue, an amount equal to 3 percent of the readjustment allowance paid to the employee or Member under title VIII of the Economic Opportunity Service Act of 1964 or section 5(c) or 6(1) of the Peace Corps Actor the stipend paid to the employee or Member under part A, B,[1] or C of title I of the Domestic Volunteer Service Act of 1973, for each period ofservice as such a volunteer or volunteer leader. This paragraph shall be subject to paragraph (4).

(2)Any deposit made under paragraph (1) more than 2 years after the later of—

(A)

October 1, 1993, or

(B)

the date on which the employee or Member making the deposit first becomes an employee or Member,

(3)

(4)The percentage of the readjustment allowance or stipend (as the case may be) payable under paragraph (1), with respect to any period of volunteer service performed during—

(A)

January 1, 1999, through December 31, 1999, shall be 3.25 percent; and

(B)

January 1, 2000, through December 31, 2000, shall be 3.4 percent.

(5)

(A)

In calculating and processing the deposit under paragraph (1) with respect to an employee, Member, or annuitant, if an employing agency of such employee, Member, or annuitant makes an administrative error that causes additional interest assessed to accrue on the deposit, theemployee, Member, or annuitant’s employing agency may pay, on behalf of the employee, Member, or annuitant, any additional interest assessed due to the administrative error.

(B)

(C)

(D)

The Director of the Office of Personnel Management shall issue such regulations as are necessary to carry out this paragraph.

(g)

A Member who has served in a position in the executive branch for which the rate of basic pay was reduced for the duration of the service of the Member to remove the impediment to the appointment of the Member imposed by article I, section 6, clause 2 of the Constitution, or the survivor of such a Member, may deposit to the credit of the Fund an amount equal to the difference between the amount deducted from the basic pay of the Member during that period ofservice and the amount that would have been deducted if the rate of basic paywhich would otherwise have been in effect during that period had been in effect, plus interest computed under section 8334(e).

(h)

No deposit may be made with respect to service credited under section 8411(b)(6).

(i)

(1)

Each employee or Member who has received a refund of retirement deductions under this or any other retirement system established for employees of the Government covering service for which such employee orMember may be allowed credit under this chapter may deposit the amount received, with interest. Credit may not be allowed for the service covered by the refund until the deposit is made.

(2)

Interest under this subsection shall be computed in accordance with paragraphs (2) and (3) of section 8334(e) and regulations prescribed by the Office. The option under the third sentence of section 8334(e)(2) to make a deposit in one or more installments shall apply to deposits under this subsection.

(3)

For the purpose of survivor annuities, deposits authorized by this subsection may also be made by a survivor of an employee or Member.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 536; amended Pub. L. 100–238, title I, § 104(a), Jan. 8, 1988, 101 Stat. 1746; Pub. L. 103–82, title III, § 371(b)(2), Sept. 21, 1993, 107 Stat. 911; Pub. L. 103–353, § 5(d), (e)(2), Oct. 13, 1994, 108 Stat. 3174; Pub. L. 104–186, title II, § 215(14), Aug. 20, 1996, 110 Stat. 1746; Pub. L. 104–316, title I, § 103(g), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 105–33, title VII, § 7001(b)(1), Aug. 5, 1997, 111 Stat. 657; Pub. L. 105–61, title V, § 516(a)(8), Oct. 10, 1997, 111 Stat. 1307; Pub. L. 105–261, div. C, title XXXI, § 3154(i)(1), Oct. 17, 1998, 112 Stat. 2255; Pub. L. 106–65, div. A, title X, § 1066(d)(3), Oct. 5, 1999, 113 Stat. 773; Pub. L. 106–346, § 101(a) [title V, § 505(b)], Oct. 23, 2000, 114 Stat. 1356, 1356A–52; Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(3)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 107–107, div. A, title XI, § 1132(b)(2)(A), (B), Dec. 28, 2001, 115 Stat. 1243, 1244; Pub. L. 107–135, title I, § 122(b), Jan. 23, 2002, 115 Stat. 2451; Pub. L. 108–92, § 1(b), Oct. 3, 2003, 117 Stat. 1160; Pub. L. 108–176, title II, § 226(b)(2)(A), Dec. 12, 2003, 117 Stat. 2530; Pub. L. 110–161, div. E, title V, § 535(b)(4), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 111–84, div. A, title XIX, §§ 1901(b), 1904(a), (b)(2), (3)(A), Oct. 28, 2009, 123 Stat. 2615, 2616; Pub. L. 112–96, title V, § 5001(b), (c)(2)(A), Feb. 22, 2012, 126 Stat. 199; Pub. L. 113–67, div. A, title IV, § 401(b), Dec. 26, 2013, 127 Stat. 1184; Pub. L. 115–352, §§ 2(b), 3(b), Dec. 21, 2018, 132 Stat. 5067, 5068.)

5 - 4 - 7 - 3 - 2 - 16 Government contributions

(a)

(1)Each employing agency having any employees or Members subject to section 8422(a) shall contribute to the Fund an amount equal to the sum of—

(A)the product of—

(i)

the normal-cost percentage, as determined for employees (other than employees covered by subparagraph (B)), multiplied by

(ii)

the aggregate amount of basic pay payable by the agency, for the period involved, to employees (under clause (i)) who are within such agency; and

(B)the product of—

(i)

the normal-cost percentage, as determined for Members,Congressional employees (including a separate normal-cost percentage for Congressional employees that are members of the Capitol Police covered under subsection (d) of section 8412 and subsection (c) of section 8425), law enforcement officers, members of the Supreme Court Police, firefighters, nuclear materials couriers, customs and border protection officers, air traffic controllers, military reserve technicians, and employees under sections 302 and 303 of the Central Intelligence Agency Retirement Act, multiplied by

(ii)

the aggregate amount of basic pay payable by the agency, for the period involved, to employees and Members (under clause (i)) who are within such agency.

(2)

(A)

In determining any normal-cost percentage to be applied under this subsection, amounts provided for under section 8422 shall be taken intoaccount.

(B)

(i)

Subject to clauses (ii) and (iii), for purposes of any period in any year beginning after December 31, 2013, the normal-cost percentage under this subsection shall be determined and applied as if section 401(b) of the Bipartisan Budget Act of 2013 had not been enacted.

(ii)

Any contributions under this subsection in excess of the amounts which (but for clause (i)) would otherwise have been payable shall be applied toward reducing the unfunded liability of the Civil ServiceRetirement System.

(iii)

After the unfunded liability of the Civil Service Retirement System has been eliminated, as determined by the Office, Governmentcontributions under this subsection shall be determined and made disregarding this subparagraph.

(iv)

The preceding provisions of this subparagraph shall be disregarded for purposes of determining the contributions payable by the United States Postal Service and the Postal Regulatory Commission.

(3)Contributions under this subsection shall be paid—

(A)

in the case of law enforcement officers, members of the SupremeCourt Police, firefighters, nuclear materials couriers, customs and border protection officers, air traffic controllers, military reserve technicians, and other employees, from the appropriation or fund used to pay such law enforcement officers, members of the Supreme Court Police, firefighters,nuclear materials couriers, customs and border protection officers, air traffic controllers, military reserve technicians, or other employees,respectively;

(B)

in the case of elected officials, from an appropriation or fundavailable for payment of other salaries of the same office or establishment; and

(C)

in the case of employees of the legislative branch paid by the Chief Administrative Officer of the House of Representatives, from the applicable accounts of the House of Representatives.

(4)

A contribution to the Fund under this subsection shall be deposited under such procedures as the Comptroller General of the United States may prescribe.

(b)

(1)The Office shall compute—

(A)

the amount of the supplemental liability of the Fund with respect to individuals other than those to whom subparagraph (B) relates, and

(B)

the amount of the supplemental liability of the Fund with respect to current or former employees of the United States Postal Service (and the Postal Regulatory Commission) and their survivors;

as of the close of each fiscal year beginning after September 30, 1987.

(2)

The amount of any supplemental liability computed under paragraph (1)(A) or (1)(B) shall be amortized in 30 equal annual installments, with interest computed at the rate used in the most recent valuation of the System.

(3)At the end of each fiscal year, the Office shall notify—

(A)

the Secretary of the Treasury of the amount of the installment computed under this subsection for such year with respect to individuals under paragraph (1)(A); and

(B)

the Postmaster General of the United States of the amount of the installment computed under this subsection for such year with respect to individuals under paragraph (1)(B).

(4)

(A)

Before closing the accounts for a fiscal year, the Secretary of the Treasury shall credit to the Fund, as a Government contribution, out of any money in the Treasury of the United States not otherwise appropriated, the amount under paragraph (3)(A) for such year.

(B)

Upon receiving notification under paragraph (3)(B), the United States Postal Service shall pay the amount specified in such notification to theFund.

(5)For the purpose of carrying out paragraph (1) with respect to any fiscal year, the Office may—

(A)

require the Board of Actuaries of the Civil Service Retirement System to make actuarial determinations and valuations, make recommendations, and maintain records in the same manner as provided in section 8347(f); and

(B)

use the latest actuarial determinations and valuations made by such Board of Actuaries.

(c)

Under regulations prescribed by the Office, the head of an agency may request reconsideration of any amount determined to be payable with respect to such agency under subsection (a) or (b). Any such request shall be referred to the Board of Actuaries of the Civil Service Retirement System. The Board of Actuaries shall review the computations of the Office and may make any adjustment with respect to any such amount which the Board determines appropriate. A determination by the Board of Actuaries under this subsection shall be final.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 537; amended Pub. L. 102–378, § 2(66), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 102–496, title VIII, § 803(c), Oct. 24, 1992, 106 Stat. 3253; Pub. L. 104–186, title II, § 215(15), Aug. 20, 1996, 110 Stat. 1746; Pub. L. 105–261, div. C, title XXXI, § 3154(j), Oct. 17, 1998, 112 Stat. 2256; Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(4)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat. 3241; Pub. L. 110–161, div. E, title V, § 535(b)(5), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 113–67, div. A, title IV, § 401(c), Dec. 26, 2013, 127 Stat. 1184; Pub. L. 116–94, div. E, title II, § 211, Dec. 20, 2019, 133 Stat. 2773.)

5 - 4 - 7 - 3 - 2 - 17 Lump-sum benefits; designation of beneficiary; order of precedence

(a)Subject to subsection (b), an employee or Member who—

(1)

(A)

is separated from the service for at least 31 consecutive days; or

(B)

is transferred to a position in which the individual is not subject to this chapter and remains in such a position for at least 31 consecutive days;

(2)

files an application with the Office for payment of the lump-sum credit;

(3)

is not reemployed in a position in which the individual is subject to this chapter at the time of filing the application; and

(4)

will not become eligible to receive an annuity within 31 days after filing the application;

is entitled to be paid the lump-sum credit. Except as provided in section 8420a, payment of the lump-sum credit to an employee or Member voids all annuity rights under this subchapter, and subchapters IV and V of this chapter, based on the service on which the lump-sum credit is based, until the employee or Member is reemployed in the service subject to this chapter.

(b)

(1)

(A)

Payment of the lump-sum credit under subsection (a) may be made only if the spouse, if any, and any former spouse of the employee orMember are notified of the employee or Member’s application.

(i)

a court order bars payment of the lump-sum credit in order to preserve the court’s ability to award an annuity under section 8445or 8467; or

(ii)

payment of the lump-sum credit would extinguish the entitlement of the spouse or former spouse, under a court order on file with theOffice, to a survivor annuity under section 8445 or to any portion of an annuity under section 8467.

(2)

(A)

Notification of a spouse or former spouse under this subsection shall be made in accordance with such requirements as the Office shall by regulation prescribe.

(B)

Under the regulations, the Office may provide that paragraph (1)(A) may be waived with respect to a spouse or former spouse if theemployee or Member establishes to the satisfaction of the Office that the whereabouts of such spouse or former spouse cannot be determined.

(3)

The Office shall prescribe regulations under which this subsection shall be applied in any case in which the Office receives two or more orders or decrees referred to in paragraph (1)(B)(i).

(c)

Under regulations prescribed by the Office, an employee or Member, or a former employee or Member, may designate one or more beneficiaries under this section.

(d)

Lump-sum benefits authorized by subsections (e) through (g) shall be paid to the individual or individuals surviving the employee or Member and alive at the date title to the payment arises in the following order of precedence, and the payment bars recovery by any other individual:

First, to the beneficiary or beneficiaries designated by the employee or Member in a signed and witnessed writing received in the Office before the death of such employee or Member. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.

Second, if there is no designated beneficiary, to the widow or widower of the employee or Member.

Third, if none of the above, to the child or children of the employee or Member and descendants of deceased children by representation.

Fourth, if none of the above, to the parents of the employee or Member or thesurvivor of them.

Fifth, if none of the above, to the duly appointed executor or administrator of the estate of the employee or Member.

For the purpose of this subsection, “child” includes a natural child and an adopted child, but does not include a stepchild.

(e)If an employee or Member, or former employee or Member, dies—

(1)

without a survivor, or

(2)

with a survivor or survivors and the right of all survivors under subchapter IV terminates before a claim for survivor annuity under such subchapter is filed,

the lump-sum credit shall be paid.

(f)

If all annuity rights under this chapter (other than under subchapter III of this chapter) based on the service of a deceased employee or Member terminate before the total annuity paid equals the lump-sum credit, the difference shall be paid.

(g)

If an annuitant dies, annuity accrued and unpaid shall be paid.

(h)

Annuity accrued and unpaid on the termination, except by death, of the annuity of an annuitant or survivor shall be paid to that individual. Annuity accrued and unpaid on the death of a survivor shall be paid in the following order of precedence, and the payment bars recovery by any other person:

First, to the duly appointed executor or administrator of the estate of the survivor.

Second, if there is no executor or administrator, payment may be made, after 30 days from the date of death of the survivor, to such next of kin of the survivor as the Office determines to be entitled under the laws of the domicile of the survivor at the date of death.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 539; amended Pub. L. 106–361, § 3(b), Oct. 27, 2000, 114 Stat. 1402; Pub. L. 111–84, div. A, title XIX, § 1904(b)(4), Oct. 28, 2009, 123 Stat. 2617.)

5 - 4 - 7 - 3 - 2 - 18 Mandatory separation

(a)

An air traffic controller who is otherwise eligible for immediate retirement under section 8412(e) shall be separated from the service on the last day of the month in which that air traffic controller becomes 56 years of age or completes 20 years of service if then over that age. The Secretary, under such regulations as the Secretary may prescribe, may exempt a controller having exceptional skills and experience as a controller from the automatic separation provisions of this subsection until that controller becomes 61 years of age. The Secretary shall notify the controller in writing of the date of separation at least 60 days before that date. Action to separate the controller is not effective, without the consent of the controller, until the last day of the month in which the 60-day notice expires. For purposes of this subsection, the term “air traffic controller” or “controller” has the meaning given to it under section 8401(35)(A).

(b)

(1)

A law enforcement officer, firefighter, nuclear materials courier, or customs and border protection officer who is otherwise eligible for immediate retirement under section 8412(d)(1) shall be separated from theservice on the last day of the month in which that law enforcement officer,firefighter, nuclear materials courier, or customs and border protection officer [1] as the case may be, becomes 57 years of age or completes 20 years of service if then over that age. If the head of the agency judges that the public interest so requires, that agency head may exempt such an employee from automatic separation under this subsection until that employee becomes 60 years of age. The employing office shall notify the employee in writing of the date of separation at least 60 days before that date. Action to separate the employee is not effective, without the consent of the employee,until the last day of the month in which the 60-day notice expires.

(2)

(c)

A member of the Capitol Police who is otherwise eligible for immediate retirement under section 8412(d)(1) shall be separated from the service on the last day of the month in which such member becomes 57 years of age or completes 20 years of service if then over that age. The Capitol Police Board,when in its judgment the public interest so requires, may exempt such amember from automatic separation under this subsection until that member becomes 60 years of age. The Board shall notify the member in writing of the date of separation at least 60 days before that date. Action to separate themember is not effective, without the consent of the member, until the last day of the month in which the 60-day notice expires.

(d)

A member of the Supreme Court Police who is otherwise eligible for immediate retirement under section 8412(d)(1) shall be separated from the service on the last day of the month in which such member becomes 57 years of age or completes 20 years of service if then over that age. The Marshal of the Supreme Court of the United States, when in his judgment the public interest so requires, may exempt such a member from automatic separation under this subsection until that member becomes 60 years of age. The Marshal shall notify the member in writing of the date of separation at least 60 days before the date. Action to separate the member is not effective, without the consent of themember, until the last day of the month in which the 60-day notice expires.

(e)

The President, by Executive order, may exempt an employee (other than amember of the Capitol Police or Supreme Court Police) from automatic separation under this section if the President determines the public interest so requires.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 540; amended Pub. L. 101–428, § 3(b)(1)(A), (2), Oct. 15, 1990, 104 Stat. 929, 930; Pub. L. 101–509, title V, § 529 [title IV, § 409(b)], Nov. 5, 1990, 104 Stat. 1427, 1468; Pub. L. 102–378, § 2(67), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 103–283, title III, § 307(b)(1), July 22, 1994, 108 Stat. 1441; Pub. L. 105–261, div. C, title XXXI, § 3154(k), Oct. 17, 1998, 112 Stat. 2256; Pub. L. 106–553, § 1(a)(2) [title III, § 308(c)(5)], Dec. 21, 2000, 114 Stat. 2762, 2762A–87; Pub. L. 107–27, § 2(b), Aug. 20, 2001, 115 Stat. 207; Pub. L. 108–176, title II, § 226(a)(3)(B), Dec. 12, 2003, 117 Stat. 2529; Pub. L. 108–447, div. B, title I, § 112(b), Dec. 8, 2004, 118 Stat. 2868; Pub. L. 108–458, title II, § 2005(b), Dec. 17, 2004, 118 Stat. 3704; Pub. L. 110–161, div. E, title V, § 535(b)(6), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 111–259, title IV, § 444(b), Oct. 7, 2010, 124 Stat. 2733; Pub. L. 117–225, § 3(b)(2)(A)(v), Dec. 9, 2022, 136 Stat. 2296.)

5 - 4 - 7 - 3 - 3 THRIFT SAVINGS PLAN (§§ 8431 to 8440f)

5 - 4 - 7 - 3 - 3 - 1 Certain transfers to be treated as a separation

(a)

For purposes of this subchapter, separation from Government employment includes a transfer from a position that is subject to one of the retirementsystems described in subsection (b) to a position that is not subject to any of them.

(b)The retirement systems described in this subsection are—

(1)

the retirement system under this chapter;

(2)

the retirement system under subchapter III of chapter 83; and

(3)

any other retirement system under which individuals may contribute to the Thrift Savings Fund through withholdings from pay.

(Added Pub. L. 106–168, title II, § 203(a)(1), Dec. 12, 1999, 113 Stat. 1820.)

5 - 4 - 7 - 3 - 3 - 2 Contributions

(a)

(1)

An employee or Member may contribute to the Thrift Savings Fund in any pay period, pursuant to an election under subsection (b), an amount not to exceed the maximum percentage of such employee’s or Member’s basic payfor such pay period allowable under paragraph (2). Contributions under this subsection pursuant to such an election shall, with respect to each pay period for which such election remains in effect, be made in accordance with a program of regular contributions provided in regulations prescribed by the Executive Director.

(2)

The maximum percentage allowable under this paragraph shall be determined in accordance with the following table:

In the case of a pay period beginning in fiscal year:	The maximum percentage allowable is:
2001	11
2002	12
2003	13
2004	14
2005	15
2006 or thereafter	100.

(3)

Notwithstanding any limitation under this subsection, an eligible participant (as defined by section 414(v) of the Internal Revenue Code of 1986) may make such additional contributions to the Thrift Savings Fund as are permitted by such section 414(v) and regulations of the Executive Director consistent therewith.

(b)

(1)

(A)

(i)

The Executive Director shall prescribe regulations under whichemployees and Members may make contributions under subsection (a), to modify the amount to be contributed under such subsection, or to terminate such contributions.

(ii)An election to make contributions under this paragraph—

(I)

may be made at any time;

(II)

shall take effect on the earliest date after the election that is administratively feasible; and

(III)

shall remain in effect until modified or terminated.

(B)

The amount to be contributed pursuant to an election under subparagraph (A) shall be the percentage of basic pay or amount designated by the employee or Member.

(2)

(A)

The Executive Director shall by regulation provide for an eligible individual to be automatically enrolled to make contributions under subsection (a) at the default percentage of basic pay.

(B)

For purposes of this paragraph, the default percentage shall be equal to 3 percent or such other percentage, not less than 2 percent nor more than 5 percent, as the Board may prescribe.

(C)The regulations shall include provisions under which any individual who would otherwise be automatically enrolled in accordance with subparagraph (A) may—

(i)

modify the percentage or amount to be contributed pursuant to automatic enrollment, effective not later than the first full pay period following receipt of the election by the appropriate processing entity; or

(ii)

decline automatic enrollment altogether.

(D)

(i)

Except as provided in clause (ii), for purposes of this paragraph, the term “eligible individual” means any individual who, after any regulations under subparagraph (A) first take effect, is appointed, transferred, or reappointed to a position in which that individual becomes eligible to contribute to the Thrift Savings Fund.

(ii)

 [1] Except in the case of a full TSP member (as defined in section 8440e(a)), members of the uniformed services shall not be eligible individuals for purposes of this paragraph.

(E)

Sections 8351(a)(1), 8440a(a)(1), 8440b(a)(1), 8440c(a)(1), 8440d(a)(1), and 8440e(b)(1) shall be applied in a manner consistent with the purposes of this paragraph.

(F)

Notwithstanding any other provision of this paragraph, if a full TSP member (as defined in section 8440e(a)) has declined automatic enrollment into the Thrift Savings Plan for a year, the full TSP membershall be automatically reenrolled on January 1 of the succeeding year, with contributions under subsection (a) at the default percentage of basic pay.

(c)

(1)

(A)

At the time prescribed by the Executive Director, but no later than 12 days after the end of the pay period that includes the first date on which an employee or Member may make contributions under subsection (a) (without regard to whether the employee or Member has elected to make such contributions during such pay period), and within such time as the Executive Director may prescribe with respect to succeeding pay periods (but no later than 12 days after the end of each such pay period), the employing agency shall contribute to the Thrift Savings Fund for the benefit of such employee or Member the amount equal to 1 percent of the basic pay of such employee or Member for such pay period.

(B)

In the case of each employee or Member who is an employee orMember on January 1, 1987, and continues as an employee or Member without a break in service through April 1, 1987, the employing agency shall contribute to the Thrift Savings Fund for the benefit of suchemployee or Member the amount equal to 1 percent of the total basic pay paid to such employee or Member for that period of service.

(C)If an employee or Member—

(i)

is an employee or Member on January 1, 1987;

(ii)

separates from Government employment before April 1, 1987; and

(iii)

before separation, completes the number of years of civilian service applicable to such employee or Member under subparagraph (A) or (B) of subsection (g)(2),

the employing agency shall contribute to the Thrift Savings Fund for the benefit of such employee or Member the amount equal to 1 percent of the total basic pay paid to such employee or Member forservice performed on or after January 1, 1987, and before the date of the separation.

(2)

(A)

In addition to contributions made under paragraph (1), the employing agency of an employee or Member who contributes to the Thrift Savings Fund under subsection (a) for any pay period shall make a contribution to the Thrift Savings Fund for the benefit of such employeeor Member. The employing agency’s contribution shall be made within such time as the Executive Director may prescribe, but no later than 12 days after the end of each such pay period.

(B)The amount contributed under subparagraph (A) by an employing agency with respect to a contribution of an employee or Member during any pay period shall be the amount equal to the sum of—

(i)

such portion of the total amount of the employee’s or Member’s contribution as does not exceed 3 percent of such employee’s orMember’s basic pay for such period; and

(ii)

one-half of such portion of the amount of the employee’s orMember’s contribution as exceeds 3 percent, but does not exceed 5 percent, of such employee’s or Member’s basic pay for such pay period.

(C)Notwithstanding subparagraph (B), the amount contributed under subparagraph (A) by an employing agency with respect to any contribution made by an employee or Member during any pay period which begins after the date on which such employee or Member makes an election under subsection (b)(4) [2] and before July 1, 1987, shall be the amount equal to the sum of—

(i)

two times such portion of the total amount of the employee’s orMember’s contribution as does not exceed 3 percent of such employee’s or Member’s basic pay for such pay period; and

(ii)

such portion of the total amount of the employee’s or Member’s contributions as exceeds 3 percent, but does not exceed 5 percent, of such employee’s or Member’s basic pay for such pay period.

(3)

(A)

There shall be contributed to the Thrift Savings Fund on behalf of each employee or Member described in subparagraph (B) the amount determined under subparagraph (C).

(B)An employee or Member referred to in subparagraph (A) is an employee or Member who—

(i)

is an employee or Member on January 1, 1987;

(ii)

has creditable service described in section 8411(b)(2) of this title; and

(iii)

has not received a refund of the amount of the retirement deductions made with respect to such service under section 204 of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983.

(C)The amount referred to in subparagraph (A) in the case of an employee or Member is equal to the sum of—

(i)

1 percent of the total basic pay paid to such employee or Member for service described in section 8411(b)(2) of this title; and

(ii)

interest on such amount computed with respect to such service in the manner provided in paragraphs (2) and (3) of section 8334(e) of this title.

(D)

The Secretary of the Treasury shall credit to the Thrift Savings Fund, out of any sums in the Treasury not otherwise appropriated, the amounts determined by the Director to be necessary to carry out this paragraph.

(d)

Notwithstanding any other provision of this section, no contribution may be made under this section for any year to the extent that such contribution, when added to prior contributions for such year, exceeds any limitation under section 415 of the Internal Revenue Code of 1986. However, no contribution made under subsection (c)(3) shall be subject to, or taken into account, for purposes of the preceding sentence.

(e)

The sums required to be contributed to the Thrift Savings Fund by an employing agency under subsection (c) for the benefit of an employee orMember shall be paid from the appropriation or fund available to such agency for payment of salaries of the employee’s or Member’s office or establishment. When an employee or Member in the legislative branch is paid by the Chief Administrative Officer of the House of Representatives, the Chief Administrative Officer may pay from the applicable accounts of the House of Representativesthe contribution that otherwise would be contributed from the appropriation orfund used to pay the employee or Member.

(f)

Amounts contributed by an employee or Member under subsection (a) and amounts contributed with respect to such employee or Member under subsection (c) shall be deposited in the Thrift Savings Fund to the credit of that employee’s or Member’s account in accordance with such procedures as the Secretary of the Treasury may, in consultation with the Executive Director, prescribe in regulations.

(g)

(1)

Except as otherwise provided in this subsection, all contributions made under this section shall be fully nonforfeitable when made.

(2)Contributions made for the benefit of an employee under subsection (c)(1) and all earnings attributable to such contributions shall be forfeited if theemployee separates from Government employment before completing—

(A)2 years of civilian service in the case of an employee who, at the time of separation, is serving in—

(i)

a position in the Senior Executive Service as a noncareer appointee (as defined in section 3132(a)(7) of this title);

(ii)

a position listed in section 5312, 5313, 5314, 5315, or 5316 of this title or a position placed in level IV or V of the Executive Schedule under section 5317 of this title; or

(iii)

a position in the Executive branch which is excepted from the competitive service by the Office by reason of the confidential and policy-determining character of the position;

(B)

3 years of civilian service in the case of an employee who is not serving in a position described in subparagraph (A) at the time of separation; or

(C)

2 years of service in the case of a member of the uniformed services.

(3)

Contributions made for the benefit of a Member or Congressional employee under subsection (c)(1) and all earnings attributable to such contributions shall be forfeited if the Member or Congressional employee separates from Government employment before completing 2 years of civilian service.

(4)

Nothing in paragraph (2) or (3) shall cause the forfeiture of any contributions made for the benefit of an employee, Member, or Congressional employee under subsection (c)(1), or any earnings attributable thereto, if such employee, Member, or Congressional employee is not separated from Government employment as of date of death.

(5)

Notwithstanding any other provision of law, contributions made by the Government for the benefit of an employee or Member under subsection (c), and all earnings attributable to such contributions, shall be forfeited if the annuity of the employee or Member, or that of a survivor or beneficiary, is forfeited under subchapter II of chapter 83.

(h)

No transfers or contributions may be made to the Thrift Savings Fund except as provided in this chapter or section 8351 of this title.

(i)

(1)This subsection applies to any employee—

(A)

to whom section 8432b applies; and

(B)who, during the period of such employee’s absence from civilianservice (as referred to in section 8432b(b)(2)(B))—

(i)

is eligible to make an election described in subsection (b)(1); or

(ii)

would be so eligible but for having either elected to terminate individual contributions to the Thrift Savings Fund within 2 months before commencing military service or separated in order to perform military service.

(2)

The Executive Director shall prescribe regulations to ensure that anyemployee to whom this subsection applies shall, within a reasonable time after being restored or reemployed (in the manner described in section 8432b(a)(2)), be afforded the opportunity to make, for purposes of this section, any election which would be allowable during a period described in subsection (b)(1)(A).

(j)

(1)For the purpose of this subsection—

(A)

the term “eligible rollover distribution” has the meaning given such term by section 402(c)(4) of the Internal Revenue Code of 1986; and

(B)

the term “qualified trust” has the meaning given such term by section 402(c)(8) of the Internal Revenue Code of 1986.

(2)

An employee or Member may contribute to the Thrift Savings Fund an eligible rollover that a qualified trust could accept under the Internal Revenue Code of 1986. A contribution made under this subsection shall be made in the form described in section 401(a)(31) of the Internal Revenue Code of 1986. In the case of an eligible rollover distribution, the maximum amount transferred to the Thrift Savings Fund shall not exceed the amount which would otherwise have been included in the employee’s or Member’s gross income for Federal income tax purposes.

(3)

The Executive Director shall prescribe regulations to carry out this subsection.

(k)

(1)

Only those employees of the Central Intelligence Agency participating in the pilot project required by section 402(b) of the Intelligence Authorization Act for Fiscal Year 2003 (Public Law 107–306; 50 U.S.C. 403–4 note) 2 and making contributions to the Thrift Savings Fund out of basic pay may also contribute (by direct transfer to the Fund) any part of bonus pay received by the employee as part of the pilot project.

(2)

Contributions under this subsection are subject to subsection (d).

(3)

For purposes of subsection (c), basic pay of an employee of the Central Intelligence Agency participating in the pilot project referred to in paragraph (1) shall include bonus pay received by the employee as part of the pilot project.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 541; amended Pub. L. 99–509, title VI, § 6001(a)(1), (2), Oct. 21, 1986, 100 Stat. 1929, 1930; Pub. L. 100–20, § 1(b), Apr. 7, 1987, 101 Stat. 265; Pub. L. 100–238, title I, §§ 114, 115, 121, Jan. 8, 1988, 101 Stat. 1751, 1752; Pub. L. 103–353, §§ 4(c), 5(e)(3), Oct. 13, 1994, 108 Stat. 3172, 3174; Pub. L. 104–93, title III, § 304(a), Jan. 6, 1996, 109 Stat. 965; Pub. L. 104–186, title II, § 215(16), Aug. 20, 1996, 110 Stat. 1746; Pub. L. 104–316, title I, § 103(g), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 106–361, §§ 1(a), 2(a), (b)(1)–(3), Oct. 27, 2000, 114 Stat. 1400, 1401; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A–233; Pub. L. 107–304, § 1(b)(1), Nov. 27, 2002, 116 Stat. 2363; Pub. L. 108–177, title IV, § 405(b)(2), Dec. 13, 2003, 117 Stat. 2632; Pub. L. 108–469, § 1(b), (c), (d)(2), Dec. 21, 2004, 118 Stat. 3891; Pub. L. 111–31, div. B, title I, § 102, June 22, 2009, 123 Stat. 1853; Pub. L. 114–92, div. A, title VI, § 632(b), (c), Nov. 25, 2015, 129 Stat. 847; Pub. L. 114–328, div. A, title VI, § 632, Dec. 23, 2016, 130 Stat. 2162.)

5 - 4 - 7 - 3 - 3 - 3 Payment of lost earnings

(a)

(1)

The Executive Director shall prescribe regulations under which an employing agency shall be required to pay to the Thrift Savings Fund amounts representing lost earnings resulting from errors (including errors of omission) made by such agency in carrying out this subchapter, subject to paragraph (2).

(2)If the error involves an employing agency’s failure to deduct from basic pay contributions (in whole or in part) on behalf of an individual in accordance with section 8432(a), the regulations shall not provide for the payment of any lost earnings which would be attributable to—

(A)

the contributions that the agency failed to deduct from basic pay in accordance with section 8432(a); or

(B)

any related contributions under section 8432(c)(2) that the employing agency is not required (by statute or otherwise) to make up.

(b)The regulations—

(1)shall include—

(A)

procedures for computing lost earnings; and

(B)

procedures under which amounts paid to the Thrift Savings Fundunder this section shall be credited to appropriate accounts;

(2)

may provide for exceptions from the requirements of this section to the extent that correction of an error is not administratively feasible;

(3)

may require an employing agency to reimburse the Thrift Savings Fundfor costs incurred by the Thrift Savings Fund in implementing corrections of employing agency errors under this section; and

(4)

may include such other provisions as the Executive Director determines appropriate to carry out this section.

(c)

Any amounts required to be paid by an employing agency under this section shall be paid from the appropriation or fund available to the employing agency for payment of salaries of the participant’s office or establishment. If a participant in the legislative branch is paid by the Chief Administrative Officer of the House of Representatives, the Chief Administrative Officer may pay from the applicable accounts of the House of Representatives the amount required to be paid to correct errors relating to the Thrift Savings Fund that otherwise would be paid from the appropriation or fund used to pay the participant.

(Added Pub. L. 101–335, § 2(a)(1), July 17, 1990, 104 Stat. 319; amended Pub. L. 104–186, title II, § 215(17), Aug. 20, 1996, 110 Stat. 1746.)

5 - 4 - 7 - 3 - 3 - 4 Contributions of persons who perform military service

(a)This section applies to any employee who—

(1)

separates or enters leave-without-pay status in order to perform military service; and

(2)

is subsequently restored to or reemployed in a position which is subject to this chapter, pursuant to chapter 43 of title 38.

(b)

(1)

Each employee to whom this section applies may contribute to the Thrift Savings Fund, in accordance with this subsection, an amount not to exceed the amount described in paragraph (2).

(2)The maximum amount which an employee may contribute under this subsection is equal to—

(A)

the contributions under section 8432(a) which would have been made, over the period beginning on date of separation or commencement of leave-without-pay status (as applicable) and ending on the day before the date of restoration or reemployment (as applicable); reduced by

(B)

any contributions under section 8432(a) or 8440e actually made by such employee over the period described in subparagraph (A).

(3)Contributions under this subsection—

(A)

shall be made at the same time and in the same manner as would any contributions under section 8432(a);

(B)

shall be made over the period of time specified by the employeeunder paragraph (4)(B); and

(C)

shall be in addition to any contributions then actually being made under section 8432(a).

(4)The Executive Director shall prescribe the time, form, and manner in which an employee may specify—

(A)

the total amount such employee wishes to contribute under this subsection with respect to any particular period referred to in paragraph (2)(B); and

(B)

the period of time over which the employee wishes to make contributions under this subsection.

The employing agency may place a maximum limit on the period of time referred to in subparagraph (B), which cannot be shorter than two times the period referred to in paragraph (2)(B) and not longer than four times such period.

(c)

(1)If an employee makes contributions under subsection (b), the employing agency shall make contributions to the Thrift Savings Fund on such employee’s behalf—

(A)

in the same manner as would be required under section 8432(c)(2) if the employee contributions were being made under section 8432(a); and

(B)

disregarding any contributions then actually being made under section 8432(a) and any agency contributions relating thereto.

(2)An employee to whom this section applies is entitled to have contributed to the Thrift Savings Fund on such employee’s behalf an amount equal to—

(A)

the total contributions to which that individual would have been entitled under section 8432(c)(2), based on the amounts contributed by such individual under section 8440e (other than under subsection (d)(2) thereof) with respect to the period referred to in subsection (b)(2)(B), if those amounts had been contributed by such individual under section 8432(a); reduced by

(B)

any contributions actually made on such employee’s behalf under section 8432(c)(2) with respect to the period referred to in subsection (b)(2)(B).

(d)An employee to whom this section applies is entitled to have contributed to the Thrift Savings Fund on such employee’s behalf an amount equal to—

(1)

1 percent of such employee’s basic pay (as determined under subsection (e)) for the period referred to in subsection (b)(2)(B); reduced by

(2)

any contributions actually made on such employee’s behalf under section 8432(c)(1) with respect to the period referred to in subsection (b)(2)(B).

(e)

For purposes of any computation under this section, an employee shall, with respect to the period referred to in subsection (b)(2)(B), be considered to have been paid at the rate which would have been payable over such period had such employee remained continuously employed in the position which such employee last held before separating or entering leave-without-pay status to perform military service.

(f)

(1)

The employing agency may be required to pay lost earnings on contributions made pursuant to subsections (c) and (d). Such earnings, if required, shall be calculated retroactively to the date the contribution would have been made had the employee not separated or entered leave without pay status to perform military service.

(2)

Procedures for calculating and crediting the earnings payable pursuant to paragraph (1) shall be prescribed by the Executive Director.

(g)Amounts paid under subsection (c), (d), or (f) shall be paid—

(1)

by the agency to which the employee is restored or in which such employee is reemployed;

(2)

from the same source as would be the case under section 8432(e) with respect to sums required under section 8432(c); and

(3)

within the time prescribed by the Executive Director.

(h)

(1)For purposes of section 8432(g), in the case of an employee to whom this section applies—

(A)

a separation from civilian service in order to perform the military service on which the employee’s restoration or reemployment rights are based shall be disregarded; and

(B)

such employee shall be credited with a period of civilian service equal to the period referred to in subsection (b)(2)(B).

(2)

(A)

An employee to whom this section applies may elect, for purposes of subsection (d) or (f) of section 8433, as the case may be, to have such employee’s separation (described in subsection (a)(1)) treated as if it had never occurred.

(B)

An election under this paragraph shall be made within such period of time after restoration or reemployment (as the case may be) and otherwise in such manner as the Executive Director prescribes.

(i)

The Executive Director shall prescribe regulations to carry out this section.

(Added Pub. L. 103–353, § 4(a)(1), Oct. 13, 1994, 108 Stat. 3170; amended Pub. L. 106–65, div. A, title VI, § 661(a)(3)(A), (C), Oct. 5, 1999, 113 Stat. 671; Pub. L. 114–92, div. A, title VI, § 632(e)(2), Nov. 25, 2015, 129 Stat. 847; Pub. L. 115–84, § 2(e), Nov. 17, 2017, 131 Stat. 1273.)

5 - 4 - 7 - 3 - 3 - 5 Contributions of certain persons reemployed after service with international organizations

(a)In this section, the term “covered person” means any person who—

(1)

transfers from a position of employment covered by chapter 83 or 84 or subchapter I or II of chapter 8 [1] of the Foreign Service Act of 1980 to a position of employment with an international organization pursuant to section 3582;

(2)

pursuant to section 3582 elects to retain coverage, rights, and benefits under any system established by law for the retirement of persons during the period of employment with the international organization and currently deposits the necessary deductions in payment for such coverage, rights, and benefits in the system’s fund; and

(3)

is reemployed pursuant to section 3582(b) to a position covered by chapter 83 or 84 or subchapter I or II of chapter 8 1 of the Foreign Service Act of 1980 after separation from the international organization.

(b)

(1)

Each covered person may contribute to the Thrift Savings Fund, in accordance with this subsection, an amount not to exceed the amount described in paragraph (2).

(2)The maximum amount which a covered person may contribute under paragraph (1) is equal to—

(A)

the total amount of all contributions under section 8351(b)(2) or 8432(a), as applicable, which the person would have made over the period beginning on the date of transfer of the person (as described in subsection (a)(1)) and ending on the day before the date of reemployment of the person (as described in subsection (a)(3)), minus

(B)

the total amount of all contributions, if any, under section 8351(b)(2)or 8432(a), as applicable, actually made by the person over the period described in subparagraph (A).

(3)Contributions under paragraph (1)—

(A)

shall be made at the same time and in the same manner as would any contributions under section 8351(b)(2) or 8432(a), as applicable;

(B)

shall be made over the period of time specified by the person under paragraph (4)(B); and

(C)

shall be in addition to any contributions actually being made by the person during that period under section 8351(b)(2) or 8432(a), as applicable.

(4)The Executive Director shall prescribe the time, form, and manner in which a covered person may specify—

(A)

the total amount the person wishes to contribute with respect to any period described in paragraph (2)(A); and

(B)

the period of time over which the covered person wishes to make contributions under this subsection.

(c)

If a covered person who makes contributions under section 8432(a) makes contributions under subsection (b), the agency employing the person shall make those contributions to the Thrift Savings Fund on the person’s behalf in the same manner as contributions are made for an employee described in section 8432b(a) under sections 8432b(c), 8432b(d), and 8432b(f). Amounts paid under this subsection shall be paid in the same manner as amounts are paid under section 8432b(g).

(d)

For purposes of any computation under this section, a covered person shall, with respect to the period described in subsection (b)(2)(A), be considered to have been paid at the rate which would have been payable over such period had the person remained continuously employed in the position that the person last held before transferring to the international organization.

(e)

For purposes of section 8432(g), a covered person shall be credited with a period of civilian service equal to the period beginning on the date of transfer of the person (as described in subsection (a)(1)) and ending on the day before the date of reemployment of the person (as described in subsection (a)(3)).

(f)

The Executive Director shall prescribe regulations to carry out this section.

(Added Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 334(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–440.)

5 - 4 - 7 - 3 - 3 - 6 Qualified Roth contribution program

(a)Definitions.—For purposes of this section—

(1)

the term “qualified Roth contribution program” means a program described in paragraph (1) of section 402A(b) of the Internal Revenue Code of 1986 which meets the requirements of paragraph (2) of such section; and

(2)

the terms “designated Roth contribution” and “elective deferral” have the meanings given such terms in section 402A of the Internal Revenue Code of 1986.

(b)Authority To Establish.—

The Executive Director shall by regulation provide for the inclusion in the Thrift Savings Plan of a qualified Roth contribution program, under such terms and conditions as the Board may prescribe.

(c)Required Provisions.—The regulations under subsection (b) shall include—

(1)provisions under which an election to make designated Roth contributions may be made—

(A)

by any individual who is eligible to make contributions under section 8351, 8432(a), 8440a, 8440b, 8440c, 8440d, or 8440e; and

(B)

by any individual, not described in subparagraph (A), who is otherwise eligible to make elective deferrals under the Thrift Savings Plan;

(2)

any provisions which may, as a result of enactment of this section, be necessary in order to clarify the meaning of any reference to an “account” made in section 8432(f), 8433, 8434(d), 8435, 8437, or any other provision of law; and

(3)

any other provisions which may be necessary to carry out this section.

(Added Pub. L. 111–31, div. B, title I, § 103(a), June 22, 2009, 123 Stat. 1853.)

5 - 4 - 7 - 3 - 3 - 7 Benefits and election of benefits

(a)

An employee or Member who separates from Government employment is entitled to the amount of the balance in the employee’s or Member’s account (except for the portion of such amount forfeited under section 8432(g) of this title, if any) as provided in this section.

(b)Subject to section 8435 of this title, any employee or Member who separates from Government employment is entitled and may elect to withdraw from the Thrift Savings Fund the balance of the employee’s or Member’s account as—

(1)

an annuity;

(2)

a single payment;

(3)

2 or more substantially equal payments to be made not less frequently than annually; or

(4)

any combination of payments as provided under paragraphs (1) through (3) as the Executive Director may prescribe by regulation.

(c)

(1)

In addition to the right provided under subsection (b) to withdraw the balance of the account, an employee or Member who separates from Government service may make one or more withdrawals of any amount in the same manner as a single payment is made in accordance with subsection (b)(2) from the employee’s or Member’s account.

(2)

An employee or Member may request that the amount withdrawn from the Thrift Savings Fund in accordance with subsection (b)(2) be transferred to an eligible retirement plan.

(3)

The Executive Director shall make each transfer elected under paragraph (2) directly to an eligible retirement plan or plans (as defined in section 402(c)(8) of the Internal Revenue Code of 1986) identified by the employee,Member, former employee, or former Member for whom the transfer is made.

(4)

A transfer may not be made for an employee, Member, former employee, or former Member under paragraph (2) until the Executive Director receives from that individual the information required by the Executive Directorspecifically to identify the eligible retirement plan or plans to which the transfer is to be made.

(5)

Withdrawals under this subsection shall be subject to such other limitations or conditions as the Executive Director may prescribe by regulation.

(d)

(1)

Subject to paragraph (2) and subsections (a) and (c) of section 8435 of this title, an employee or Member may change an election previously made under this subchapter, except that in the case of an election to receive an annuity, a former employee or Member may not change an election under this section on or after the date on which an annuity contract is purchased to provide for the annuity elected by the former employee or Member.

(2)

A former employee or Member may not return a payment that was made pursuant to an election under this section.

(e)

(1)

If an employee or Member (or former employee or Member) dies without having made an election under this section or after having elected an annuity under this section but before making an election under section 8434 of this title, an amount equal to the value of that individual’s account (as of death) shall, subject to any decree, order, or agreement referred to in section 8435(c)(2) of this title be paid in a manner consistent with section 8424(d) of this title.

(2)Notwithstanding section 8424(d), if an employee, Member, former employee, or former Member dies and has designated as sole or partial beneficiary his or her spouse at the time of death, or, if an employee,Member, former employee, or former Member, dies with no designated beneficiary and is survived by a spouse, the spouse may maintain the portion of the employee’s or Member’s account to which the spouse is entitled in accordance with the following terms:

(A)

Subject to the limitations of subparagraph (B), the spouse shall have the same withdrawal options under subsection (b) as the employee orMember were the employee or Member living.

(B)

The spouse may not make withdrawals under subsection (g) or (h).

(C)

The spouse may not make contributions or transfers to the account.

(D)

The account shall be disbursed upon the death of the surviving spouse. A beneficiary or surviving spouse of a deceased spouse who has inherited an account is ineligible to maintain the inherited spousal account.

(3)

The Executive Director shall prescribe regulations to carry out this subsection.

(f)

Notwithstanding subsection (b), if an employee or Member separates from Government employment, and such employee’s or Member’s nonforfeitable account balance is less than an amount that the Executive Director prescribes by regulation, the Executive Director shall pay the nonforfeitable account balance to the participant in a single payment, unless an election under section 8432b(h)(2)is made to treat such separation for purposes of this subsection as if it had never occurred.

(g)

(1)

At any time before separation, an employee or Member may apply to theBoard for permission to borrow from the employee’s or Member’s account an amount not exceeding the value of that portion of such account which is attributable to contributions made by the employee or Member. Before a loan is issued, the Executive Director shall provide in writing the employee orMember with appropriate information concerning the cost of the loan relative to other sources of financing, as well as the lifetime cost of the loan, including the difference in interest rates between the funds offered by the Thrift Savings Fund, and any other effect of such loan on the employee’s orMember’s final account balance.

(2)

Loans under this subsection shall be available to all employees andMembers on a reasonably equivalent basis, and shall be subject to such other conditions as the Board may by regulation prescribe. The restrictions of section 8477(c)(1) of this title shall not apply to loans made under this subsection.

(3)

A loan may not be made under this subsection to the extent that the loan would be treated as a taxable distribution under section 72(p) of the Internal Revenue Code of 1986.

(4)

A loan may not be made under this subsection unless the requirements of section 8435(e) of this title are satisfied.

(h)

(1)An employee or Member may apply, before separation, to the Board for permission to withdraw an amount from the employee’s or Member’saccount based upon—

(A)

the employee or Member having attained age 59½; or

(B)

financial hardship.

(2)

A withdrawal under paragraph (1)(B) shall be available only for an amount not exceeding the value of that portion of such account which is attributable to contributions made by the employee or Member.

(3)

Withdrawals under paragraph (1) shall be subject to such other limitations or conditions as the Executive Director may prescribe by regulation.

(4)

A withdrawal may not be made under this subsection unless the requirements of section 8435(e) of this title are satisfied.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 544; amended Pub. L. 100–238, title I, § 132, Jan. 8, 1988, 101 Stat. 1760; Pub. L. 101–335, §§ 5(a), 6(a)(2), July 17, 1990, 104 Stat. 321, 322; Pub. L. 102–484, div. D, title XLIV, § 4437(a), Oct. 23, 1992, 106 Stat. 2724; Pub. L. 103–226, § 9(b), (i)(3)–(7), Mar. 30, 1994, 108 Stat. 119, 121, 122; Pub. L. 103–353, §§ 4(b), 5(e)(4), Oct. 13, 1994, 108 Stat. 3172, 3174; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 203(a)]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–374; Pub. L. 106–65, div. A, title VI, § 661(a)(4), Oct. 5, 1999, 113 Stat. 672; Pub. L. 108–469, § 3(1), Dec. 21, 2004, 118 Stat. 3893; Pub. L. 111–31, div. B, title I, § 109, June 22, 2009, 123 Stat. 1856; Pub. L. 115–84, § 2(a)–(d), Nov. 17, 2017, 131 Stat. 1272, 1273.)

5 - 4 - 7 - 3 - 3 - 8 Annuities: methods of payment; election; purchase

(a)

(1)

The Board shall prescribe methods of payment of annuities under this subchapter.

(2)The methods of payment prescribed under paragraph (1) shall include, but not be limited to—

(A)

a method which provides for the payment of a monthly annuity only to an annuitant during the life of the annuitant;

(B)

a method which provides for the payment of a monthly annuity to an annuitant for the joint lives of the annuitant and the spouse of the annuitant and an appropriate monthly annuity to the one of them who survives the other of them for the life of the survivor;

(C)

a method described in subparagraph (A) which provides for automatic adjustments in the amount of the annuity payable so long as the amount of the annuity payable in any one year shall not be less than the amount payable in the previous year;

(D)

a method described in subparagraph (B) which provides for automatic adjustments in the amount of the annuity payable so long as the amount of the annuity payable in any one year shall not be less than the amount payable in the previous year; and

(E)a method which provides for the payment of a monthly annuity—

(i)

to the annuitant for the joint lives of the annuitant and an individual who is designated by the annuitant under regulations prescribed by the Executive Director and (I) is a former spouse of theannuitant, or (II) has an insurable interest in the annuitant; and

(ii)

to the one of them who survives the other of them for the life of the survivor.

(b)

Subject to section 8435(b) of this title, under such regulations as theExecutive Director shall prescribe, an employee, Member, former employee, or former Member who elects under section 8433 of this title to receive an annuity under this subchapter shall elect, on or before the date on which an annuity contract is purchased to provide for that annuity, one of the methods of payment prescribed under subsection (a).

(c)

Notwithstanding the elimination of a method of payment by the Board, an employee, Member, former employee, or former Member may elect the eliminated method if the elimination of such method becomes effective less than 5 years before the date on which that individual’s annuity commences.

(d)

(1)

Not earlier than 90 days (or such shorter period as the Executive Directormay by regulation prescribe) before an annuity is to commence under this subchapter, the Executive Director shall expend the balance in theannuitant’s account to purchase an annuity contract from any entity which, in the normal course of its business, sells and provides annuities.

(2)

The Executive Director shall assure, by contract entered into with each entity from which an annuity contract is purchased under paragraph (1), that the annuity shall be provided in accordance with the provisions of this subchapter and subchapter VII of this chapter.

(3)

An annuity contract purchased under paragraph (1) shall include such terms and conditions as the Executive Director requires for the protection of the annuitant.

(4)

The Executive Director shall require, from each entity from which an annuity contract is purchased under paragraph (1), a bond or proof of financial responsibility sufficient to protect the annuitant.

(e)

(1)

No tax, fee, or other monetary payment may be imposed or collected by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, on, or with respect to, any amount paid to purchase an annuity contract under this section.

(2)

Paragraph (1) shall not be construed to exempt any company or other entity issuing an annuity contract under this section from the imposition, payment, or collection of a tax, fee, or other monetary payment on the net income or profit accruing to or realized by that entity from the sale of an annuity contract under this section if that tax, fee, or payment is applicable to a broad range of business activity.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 546; amended Pub. L. 100–238, title I, § 129, Jan. 8, 1988, 101 Stat. 1759; Pub. L. 101–335, §§ 4(a), 5(b), July 17, 1990, 104 Stat. 321; Pub. L. 103–226, § 9(c), (i)(8), Mar. 30, 1994, 108 Stat. 120, 122.)

5 - 4 - 7 - 3 - 3 - 9 Protections for spouses and former spouses

(a)

(1)

(A)

A married employee or Member (or former employee or Member)may withdraw all or part of a Thrift Savings Fund account under subsection (b)(2), (3), or (4) of section 8433 of this title or change a withdrawal election only if the employee or Member (or formeremployee or Member) satisfies the requirements of subparagraph (B). A married employee or Member (or former employee or Member) may make a withdrawal from a Thrift Savings Fund account under subsection (c)(1) of section 8433 of this title only if the employee or Member (or former employee or Member) satisfies the requirements of subparagraph (B).

(B)

An employee or Member (or former employee or Member) may make an election or change referred to in subparagraph (A) if the employee orMember and the employee’s or Member’s spouse (or the former employee or Member and the former employee’s or Member’s spouse) jointly waive, by written election, any right which the spouse may have to a survivor annuity with respect to such employee or Member (or former employee or Member) under section 8434 of this title or subsection (b).

(2)Paragraph (1) shall not apply to an election or change of election by an employee or Member (or former employee or Member) who establishes to the satisfaction of the Executive Director (at the time of the election or change and in accordance with regulations prescribed by the Executive Director)—

(A)

that the spouse’s whereabouts cannot be determined; or

(B)

that, due to exceptional circumstances, requiring the spouse’s waiver would otherwise be inappropriate.

(b)

(1)

Notwithstanding any election under subsection (b) of section 8434 of this title, the method described in subsection (a)(2)(B) of such section (or, if more than one form of such method is available, the form which the Board determines to be the one which provides for a surviving spouse a survivor annuity most closely approximating the annuity of a surviving spouse under section 8442 of this title) shall be deemed the applicable method under such subsection (b) in the case of an employee, Member, former employee, or former Member who is married on the date on which an annuity contract is purchased to provide for the employee’s, Member’s, former employee’s, or former Member’s annuity under this subchapter.

(2)Paragraph (1) shall not apply if—

(A)

a joint waiver of such method is made, in writing, by the employee orMember and the spouse; or

(B)

the employee or Member waives such method, in writing, after establishing to the satisfaction of the Executive Director that circumstances described under subsection (a)(2)(A) or (B) make the requirement of a joint waiver inappropriate.

(c)

(1)

An election or change of election shall not be effective under this subchapter to the extent that the election, change, or transfer conflicts with any court decree, order, or agreement described in paragraph (2).

(2)A court decree, order, or agreement referred to in paragraph (1) is, with respect to an employee or Member (or former employee or Member), acourt decree of divorce, annulment, or legal separation issued in the case of such employee or Member (or former employee or Member) and any former spouse of the employee or Member (or former employee or Member) or anycourt order or court-approved property settlement agreement incident to such decree if—

(A)

the decree, order, or agreement expressly relates to any portion of the balance in the employee’s or Member’s (or former employee’s orMember’s) account; and

(B)notice of the decree, order, or agreement was received by the Executive Director before—

(i)

the date on which payment is made, or

(ii)

in the case of an annuity, the date on which an annuity contract is purchased to provide for the annuity,

in accordance with the election, change, or contribution referred to in paragraph (1).

(3)

The Executive Director shall prescribe regulations under which this subsection shall be applied in any case in which the Executive Directorreceives two or more decrees, orders, or agreements referred to in paragraph (1).

(d)

(1)Subject to paragraphs (2) through (7), a former spouse of a deceasedemployee or Member (or a deceased former employee or Member) who died after performing 18 or more months of service and a former spouse of a deceased former employee or Member who died entitled to an immediate or deferred annuity under subchapter II of this chapter is entitled to asurvivor annuity under this subsection if and to the extent that—

(A)

an election under section 8434(a)(2)(E) of this title, or

(B)

any court decree, order, or agreement (described in subsection (c)(2), without regard to subparagraph (B) of such subsection) which relates to such deceased individual and such former spouse,

expressly provides for such survivor annuity.

(2)

Paragraph (1) shall apply only to payments made by the Executive Director after the date on which the Executive Director receives written notice of the election, decree, order, or agreement, and such additional information and documentation as the Executive Director may require.

(3)The amount of the survivor annuity payable from the Thrift Savings Fund to a former spouse of a deceased employee, Member, former employee, or former Member under this section may not exceed the excess, if any, of—

(A)

the amount of the survivor annuity determined for a surviving spouse of the deceased employee, Member, former employee, or formerMember under the method described in subsection (b)(1), over

(B)

the total amount of all other survivor annuities payable under this subchapter to other former spouses of such deceased employee,Member, former employee, or former Member based on the order of precedence provided in paragraph (4).

(4)

If more than one former spouse of a deceased employee, Member,former employee, or former Member is entitled to a survivor annuity pursuant to this subsection, the amount of each such survivor annuity shall be limited appropriately to carry out paragraph (3) in the order of precedence established for the entitlements by the chronological order of the dates on which elections are properly made pursuant to section 8434(a)(2)(E) of this title and the dates on which the court decrees, orders, or agreements applicable to the entitlement were issued, as the case may be.

(5)

Subsections (c) and (d) of section 8445 of this title shall apply to an entitlement of a former spouse to a survivor annuity under this subsection.

(6)

For the purposes of this section, a court decree, order, or agreement or an election referred to in subsection (a) of this section shall not be effective, in the case of a former spouse, to the extent that the election is inconsistent with any joint waiver previously executed with respect to such former spouse under subsection (a)(2) or (b)(2).

(7)

Any payment under this subsection to any individual bars recovery by any other individual.

(e)

(1)

(A)

A loan or withdrawal may be made to a married employee orMember under section 8433(g) and (h) of this title only if the employee’s or Member’s spouse consents to such loan or withdrawal in writing.

(B)

A consent under subparagraph (A) shall be irrevocable with respect to the loan or withdrawal to which the consent relates.

(C)Subparagraph (A) shall not apply to a loan or withdrawal to an employee or Member who establishes to the satisfaction of the Executive Director (at the time the employee or Member applies for such loan or withdrawal and in accordance with regulations prescribed by the Executive Director)—

(i)

that the spouse’s whereabouts cannot be determined; or

(ii)

that, due to exceptional circumstances, requiring the employee orMember to seek the spouse’s consent would otherwise be inappropriate.

(2)

An application for a loan or withdrawal under section 8433(g) and (h) of this title shall not be approved if approval would have the result described under subsection (c)(1).

(f)

Waivers and notifications required by this section and waivers of the requirements for such waivers and notifications (as authorized by this section) may be made only in accordance with procedures prescribed by the Executive Director.

(g)

Except with respect to the making of loans or withdrawals under section 8433(g) and (h), none of the provisions of this section requiring notification to, or the consent or waiver of, a spouse or former spouse of an employee, Member,former employee, or former Member shall apply in any case in which the nonforfeitable account balance of the employee, Member, former employee, or former Member is $3,500 or less.

(h)

The protections provided by this section are in addition to the protections provided by section 8467 of this title.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 547; amended Pub. L. 101–335, §§ 5(c), 6(a)(3), July 17, 1990, 104 Stat. 322, 323; Pub. L. 102–484, div. D, title XLIV, § 4437(b), Oct. 23, 1992, 106 Stat. 2724; Pub. L. 103–226, § 9(d), (i)(9)–(15), Mar. 30, 1994, 108 Stat. 120, 122; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 204]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–376.)

5 - 4 - 7 - 3 - 3 - 10 Administrative provisions

(a)

The Executive Director shall make or provide for payments and transfers in accordance with an election of an employee or Member under section 8433 or 8434(b) of this title or, if applicable, in accordance with section 8435 of this title.

(b)

Any election, change of election, or modification of a deferred annuity commencement date made under this subchapter shall be in writing and shall be filed with the Executive Director in accordance with regulations prescribed by the Executive Director.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 550.)

5 - 4 - 7 - 3 - 3 - 11 Thrift Savings Fund

(a)

There is established in the Treasury of the United States a Thrift Savings Fund.

(b)

The Thrift Savings Fund consists of the sum of all amounts contributed under section 8432 of this title and all amounts deposited under section 8479(b) of this title, increased by the total net earnings from investments of sums in the Thrift Savings Fund or reduced by the total net losses from investments of the Thrift Savings Fund, and reduced by the total amount of payments made from the Thrift Savings Fund (including payments for administrative expenses).

(c)The sums in the Thrift Savings Fund are appropriated and shall remain available without fiscal year limitation—

(1)

to invest under section 8438 of this title;

(2)

to pay benefits or purchase annuity contracts under this subchapter;

(3)

to pay the administrative expenses of the Federal Retirement Thrift Investment Management System prescribed in subchapter VII of this chapter;

(4)

to make distributions for the purposes of section 8440(b) of this title;

(5)

to make loans to employees and Members as authorized under section 8433(g) of this title; and

(6)

to purchase insurance as provided in section 8479(b)(2) of this title.

(d)

Administrative expenses incurred to carry out this subchapter and subchapter VII of this chapter shall be paid first out of any sums in the Thrift Savings Fund forfeited under section 8432(g) of this title and then out of net earnings in such Fund.

(e)

(1)

Subject to subsection (d) and paragraphs (2) and (3), sums in the Thrift Savings Fund credited to the account of an employee, Member, former employee, or former Member may not be used for, or diverted to, purposes other than for the exclusive benefit of the employee, Member, former employee, or former Member or his beneficiaries under this subchapter.

(2)

Except as provided in paragraph (3), sums in the Thrift Savings Fund may not be assigned or alienated and are not subject to execution, levy, attachment, garnishment, or other legal process. For the purposes of this paragraph, a loan made from such Fund to an employee or Member shall not be considered to be an assignment or alienation.

(3)

Moneys due or payable from the Thrift Savings Fund to any individual and, in the case of an individual who is an employee or Member (or former employee or Member), the balance in the account of the employee orMember (or former employee or Member) shall be subject to legal process for the enforcement of the individual’s legal obligations to provide child support or make alimony payments as provided in section 459 of the Social Security Act (42 U.S.C. 659), the enforcement of an order for restitution under section 3663A of title 18, forfeiture under section 8432(g)(5) of this title, an obligation of the Executive Director to make a transfer under section 415(d)(3) of the Congressional Accountability Act of 1995 (2 U.S.C. 1415(d)(3)), or an obligation of the Executive Director to make a payment to another person under section 8467 of this title, and shall be subject to a Federal tax levy under section 6331 of the Internal Revenue Code of 1986. For the purposes of this paragraph, an amount contributed for the benefit of an individual under section 8432(c)(1) (including any earnings attributable thereto) shall not be considered part of the balance in such individual’saccount unless such amount is nonforfeitable, as determined under applicable provisions of section 8432(g).

(f)

The sums in the Thrift Savings Fund shall not be appropriated for any purpose other than the purposes specified in this section and may not be used for any other purpose.

(g)

All sums contributed to the Thrift Savings Fund by an employee or Member or by an employing agency for the benefit of such employee or Member and all net earnings in such Fund attributable to investment of such sums are held in such Fund in trust for such employee or Member.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 550; amended Pub. L. 100–238, title I, §§ 116, 117(a), Jan. 8, 1988, 101 Stat. 1751; Pub. L. 103–226, § 9(i)(16), Mar. 30, 1994, 108 Stat. 122; Pub. L. 103–358, § 2(b)(4), Oct. 14, 1994, 108 Stat. 3421; Pub. L. 111–31, div. B, title I, § 108, June 22, 2009, 123 Stat. 1856; Pub. L. 112–267, § 1, Jan. 14, 2013, 126 Stat. 2440; Pub. L. 115–397, title I, § 111(b), Dec. 21, 2018, 132 Stat. 5311.)

5 - 4 - 7 - 3 - 3 - 12 Investment of Thrift Savings Fund

(a)For the purposes of this section—

(1)

the term “Common Stock Index Investment Fund” means the Common Stock Index Investment Fund established under subsection (b)(1)(C);

(2)

the term “equity capital” means common and preferred stock, surplus, undivided profits, contingency reserves, and other capital reserves;

(3)

the term “Fixed Income Investment Fund” means the Fixed Income Investment Fund established under subsection (b)(1)(B);

(4)

the term “Government Securities Investment Fund” means the Government Securities Investment Fund established under subsection (b)(1)(A);

(5)

the term “International Stock Index Investment Fund” means the International Stock Index Investment Fund established under subsection (b)(1)(E);

(6)

the term “net worth” means capital, paid-in and contributed surplus, unassigned surplus, contingency reserves, group contingency reserves, and special reserves;

(7)

the term “plan” means an employee benefit plan, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(3));

(8)the term “qualified professional asset manager” means—

(A)a bank, as defined in section 202(a)(2) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–2(a)(2)) which—

(i)

has the power to manage, acquire, or dispose of assets of a plan; and

(ii)

has, as of the last day of its latest fiscal year ending before the date of a determination for the purpose of this clause, equity capitalin excess of $1,000,000;

(B)a savings and loan association, the accounts of which are insured by the Federal Deposit Insurance Corporation, which—

(i)

has applied for and been granted trust powers to manage, acquire, or dispose of assets of a plan by a State or Government authority having supervision over savings and loan associations; and

(ii)

has, as of the last day of its latest fiscal year ending before the date of a determination for the purpose of this clause, equity capitalor net worth in excess of $1,000,000;

(C)an insurance company which—

(i)

is qualified under the laws of more than one State to manage, acquire, or dispose of any assets of a plan;

(ii)

has, as of the last day of its latest fiscal year ending before the date of a determination for the purpose of this clause, net worth in excess of $1,000,000; and

(iii)

is subject to supervision and examination by a State authority having supervision over insurance companies; or

(D)an investment adviser registered under section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b–3) if the investment adviser has, on the last day of its latest fiscal year ending before the date of a determination for the purpose of this subparagraph, total client assets under its management and control in excess of $50,000,000, and—

(i)

the investment adviser has, on such day, shareholder’s or partner’s equity in excess of $750,000; or

(ii)payment of all of the investment adviser’s liabilities, including any liabilities which may arise by reason of a breach or violation of a duty described in section 8477 of this title, is unconditionally guaranteed by—

(I)

a person (as defined in section 8471(4) of this title) who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the investment adviser and who has, on the last day of the person’s latest fiscal year ending before the date of a determination for the purpose of this clause, shareholder’s or partner’s equity in an amount which, when added to the amount of the shareholder’s or partner’s equity of the investment adviser on such day, exceeds $750,000;

(II)

a qualified professional asset manager described in subparagraph (A), (B), or (C); or

(III)

a broker or dealer registered under section 15 of the Securities Exchange Act of 1934 (15 U.S.C. 78o) that has, on the last day of the broker’s or dealer’s latest fiscal year ending before the date of a determination for the purpose of this clause, net worth in excess of $750,000;

(9)

the term “shareholder’s or partner’s equity”, as used in paragraph (8)(D) with respect to an investment adviser or a person (as defined in section 8471(4) of this title) who is affiliated with the investment adviser in a manner described in clause (ii)(I) of such paragraph (8)(D), means the equity shown in the most recent balance sheet prepared for such investment adviser or affiliated person, in accordance with generally accepted accounting principles, within 2 years before the date on which the investment adviser’s status as a qualified professional asset manager is determined for the purposes of this section; and

(10)

the term “Small Capitalization Stock Index Investment Fund” means the Small Capitalization Stock Index Investment Fund established under subsection (b)(1)(D).

(b)

(1)The Board shall establish—

(A)

a Government Securities Investment Fund under which sums in the Thrift Savings Fund are invested in securities of the United StatesGovernment issued as provided in subsection (e);

(B)a Fixed Income Investment Fund under which sums in the Thrift Savings Fund are invested in—

(i)

insurance contracts;

(ii)

certificates of deposits; or

(iii)

other instruments or obligations selected by qualified professional asset managers,

which return the amount invested and pay interest, at a specified rate or rates, on that amount during a specified period of time;

(C)

a Common Stock Index Investment Fund as provided in paragraph (2);

(D)

a Small Capitalization Stock Index Investment Fund as provided in paragraph (3);

(E)

an International Stock Index Investment Fund as provided in paragraph (4); and

(F)

a service that enables participants to invest in mutual funds, if theBoard authorizes the mutual fund window under paragraph (5).

(2)

(A)

The Board shall select an index which is a commonly recognized index comprised of common stock the aggregate market value of which is a reasonably complete representation of the United States equity markets.

(B)

The Common Stock Index Investment Fund shall be invested in a portfolio designed to replicate the performance of the index selected under subparagraph (A). The portfolio shall be designed such that, to the extent practicable, the percentage of the Common Stock Index Investment Fund that is invested in each stock is the same as the percentage determined by dividing the aggregate market value of all shares of that stock by the aggregate market value of all shares of all stocks included in such index.

(3)

(A)

The Board shall select an index which is a commonly recognized index comprised of common stock the aggregate market value of which represents the United States equity markets excluding the common stocks included in the Common Stock Index Investment Fund.

(B)

The Small Capitalization Stock Index Investment Fund shall be invested in a portfolio designed to replicate the performance of the index in subparagraph (A). The portfolio shall be designed such that, to the extent practicable, the percentage of the Small Capitalization Stock Index Investment Fund that is invested in each stock is the same as the percentage determined by dividing the aggregate market value of all shares of that stock by the aggregate market value of all shares of all stocks included in such index.

(4)

(A)

The Board shall select an index which is a commonly recognized index comprised of stock the aggregate market value of which is a reasonably complete representation of the international equity markets excluding the United States equity markets.

(B)

The International Stock Index Investment Fund shall be invested in a portfolio designed to replicate the performance of the index in subparagraph (A). The portfolio shall be designed such that, to the extent practicable, the percentage of the International Stock Index Investment Fund that is invested in each stock is the same as the percentage determined by dividing the aggregate market value of all shares of that stock by the aggregate market value of all shares of all stocks included in such index.

(5)

(A)

The Board may authorize the addition of a mutual fund window under the Thrift Savings Plan if the Board determines that such addition would be in the best interests of participants.

(B)

The Board shall ensure that any expenses charged for use of the mutual fund window are borne solely by the participants who use such window.

(C)

The Board may establish such other terms and conditions for the mutual fund window as the Board considers appropriate to protect the interests of participants, including requirements relating to risk disclosure.

(D)

The Board shall consult with the Employee Thrift Advisory Council (established under section 8473) before authorizing the addition of a mutual fund window or establishing a service that enables participants to invest in mutual funds.

(c)

(1)

The Executive Director shall invest the sums available in the Thrift SavingsFund for investment as provided in elections made under subsection (d).

(2)

If an election has not been made with respect to any sums available for investment in the Thrift Savings Fund, the Executive Director shall invest such sums in an age-appropriate target date asset allocation investmentfund, as determined by the Executive Director. Such investment fund shall consist of any of the funds described in subsection (b).

(d)

(1)

At least twice each year, an employee or Member (or former employee orMember) may elect the investment funds and options referred to in subsection (b) into which the sums in the Thrift Savings Fund credited to such individual’s account are to be invested or reinvested.

(2)

An election may be made under paragraph (1) only in accordance with regulations prescribed by the Executive Director and within such period as the Executive Director shall provide in such regulations.

(e)

(1)

The Secretary of the Treasury is authorized to issue special interest-bearing obligations of the United States for purchase by the Thrift Savings Fund for the Government Securities Investment Fund.

(2)

(A)

Obligations issued for the purpose of this subsection shall have maturities fixed with due regard to the needs of such Fund as determined by the Executive Director, and shall bear interest at a rate equal to the average market yield (computed by the Secretary of the Treasury on the basis of market quotations as of the end of the calendar month next preceding the date of issue of such obligations) on all marketable interest-bearing obligations of the United States then forming a part of the public debt which are not due or callable earlier than 4 years after the end of such calendar month.

(B)

Any average market yield computed under subparagraph (A) which is not a multiple of one-eighth of 1 percent, shall be rounded to the nearest multiple of one-eighth of 1 percent.

(f)

The Board, other Government agencies, the Executive Director, an employee,a Member, a former employee, and a former Member may not exercise voting rights associated with the ownership of securities by the Thrift Savings Fund.

(g)

(1)

Notwithstanding subsection (e) of this section, the Secretary of the Treasury may suspend the issuance of additional amounts of obligations of the United States, if such issuances could not be made without causing the public debt of the United States to exceed the public debt limit, as determined by the Secretary of the Treasury.

(2)

Any issuances of obligations to the Government Securities Investment Fund which, solely by reason of the public debt limit are not issued, shall be issued under subsection (e) by the Secretary of the Treasury as soon as such issuances can be issued without exceeding the public debt limit.

(3)

Upon expiration of the debt issuance suspension period, the Secretary of the Treasury shall immediately issue to the Government Securities Investment Fund obligations under chapter 31 of title 31 that (notwithstanding subsection (e)(2) of this section) bear such interest rates and maturity dates as are necessary to ensure that, after such obligations are issued, the holdings of obligations of the United States by the Government Securities Investment Fund will replicate the obligations that would then be held by the Government Securities Investment Fund under the procedure set forth in paragraph (5), if the suspension of issuances under paragraph (1) of this subsection had not occurred.

(4)On the first business day after the expiration of any debt issuance suspension period, the Secretary of the Treasury shall pay to the Government Securities Investment Fund, from amounts in the general fund of the Treasury of the United States not otherwise appropriated, an amount equal to the excess of the net amount of interest that would have been earned by the Government Securities Investment Fund from obligations of the United States during such debt issuance suspension period if—

(A)

amounts in the Government Securities Investment Fund that were available for investment in obligations of the United States and were not invested during such debt issuance suspension period solely by reason of the public debt limit had been invested under the procedure set forth in paragraph (5), over

(B)

the net amount of interest actually earned by the Government Securities Investment Fund from obligations of the United States during such debt issuance suspension period.

(5)

On each business day during the debt limit suspension period, the Executive Director shall notify the Secretary of the Treasury of the amounts, by maturity, that would have been invested or redeemed each day had the debt issuance suspension period not occurred.

(6)For purposes of this subsection and subsection (h) of this section—

(A)

the term “public debt limit” means the limitation imposed by section 3101(b) of title 31; and

(B)

(h)

(1)

The Secretary of the Treasury shall report to Congress on the operation and status of the Thrift Savings Fund during each debt issuance suspension period for which the Secretary is required to take action under paragraph (3) or (4) of subsection (g) of this section. The report shall be submitted as soon as possible after the expiration of such period, but not later than 30 days after the first business day after the expiration of such period. The Secretary shall concurrently transmit a copy of such report to the Executive Director.

(2)

Whenever the Secretary of the Treasury determines that, by reason of the public debt limit, the Secretary will be unable to fully comply with the requirements of subsection (e) of this section, the Secretary shall immediately notify Congress and the Executive Director of the determination. The notification shall be made in writing.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 551; amended Pub. L. 100–43, § 2, May 22, 1987, 101 Stat. 315; Pub. L. 100–366, § 2(a), July 13, 1988, 102 Stat. 826; Pub. L. 101–335, § 3(a), July 17, 1990, 104 Stat. 320; Pub. L. 102–378, § 2(68), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title I, § 102]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372; Pub. L. 104–316, title I, § 103(i), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 111–31, div. B, title I, § 104, June 22, 2009, 123 Stat. 1854; Pub. L. 113–255, § 2(a), Dec. 18, 2014, 128 Stat. 2920; Pub. L. 114–92, div. A, title VI, § 632(d), Nov. 25, 2015, 129 Stat. 847.)

5 - 4 - 7 - 3 - 3 - 13 Accounting and information

(a)

(1)

The Executive Director shall establish and maintain an account for each individual who makes contributions or for whom contributions are made under section 8432 of this title or who makes contributions to the Thrift Savings Fund.

(2)The balance in an individual’s account at any time is the excess of—

(A)the sum of—

(i)

all contributions made to the Thrift Savings Fund by the individual;

(ii)

all contributions made to such Fund for the benefit of the individual; and

(iii)

the total amount of the allocations made to and reductions made in the account pursuant to paragraph (3), over

(B)

the amounts paid out of the Thrift Savings Fund with respect to such individual under this subchapter.

(3)

Pursuant to regulations prescribed by the Executive Director, the Executive Director shall allocate to each account an amount equal to a pro rata share of the net earnings and net losses from each investment of sums in the Thrift Savings Fund attributable to sums credited to such account,reduced by an appropriate share of the administrative expenses paid out of the net earnings under section 8437(d) of this title, as determined by theExecutive Director.

(b)

(1)

For the purposes of this subsection, the term “qualified public accountant” shall have the same meaning as provided in section 103(a)(3)(D) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1023(a)(3)(D)).

(2)

The Executive Director shall annually engage, on behalf of all individuals for whom an account is maintained, an independent qualified public accountant, who shall conduct an examination of all accounts and other books and records maintained in the administration of this subchapter and subchapter VII as the public accountant considers necessary to enable the public accountant to make the determination required by paragraph (3). The examination shall be conducted in accordance with generally accepted auditing standards and shall involve such tests of the accounts, books, and records as the public accountant considers necessary.

(3)

The public accountant conducting an examination under paragraph (2) shall determine whether the accounts, books, and records referred to in such paragraph have been maintained in conformity with generally accepted accounting principles applied on a basis consistent with the manner in which such principles were applied during the examination conducted under such paragraph during the preceding year. The public accountant shall transmit to the Board a report on his examination, including his determination under this paragraph.

(4)

In making a determination under paragraph (3), a public accountant may rely on the correctness of any actuarial matter certified by an enrolled actuary if the public accountant states his reliance in the report transmitted to the Board under such paragraph.

(c)

(1)The Board shall prescribe regulations under which each individual for whom an account is maintained shall be furnished with—

(A)

a periodic statement relating to the individual’s account; and

(B)

a summary description of the investment options under section 8438 of this title covering, and an evaluation of, each such option the 5-year period preceding the date as of which such evaluation is made.

(2)

Information under this subsection shall be provided on a regular basis, and in a manner designed to facilitate informed decisionmaking with respect to elections under sections 8432 and 8438 of this title. Nothing in this paragraph shall be considered to limit the dissemination of information only to the times required under the preceding sentence.

(d)

(1)

Each employee, Member, former employee, or former Member who elects to invest in any investment fund or option under this chapter, other than the Government Securities Investment Fund, shall sign an acknowledgement prescribed by the Executive Director which states that theemployee, Member, former employee, or former Member understands that an investment in any such fund or option is made at the employee’s,Member’s, former employee’s, or former Member’s risk, that the employee,Member, former employee, or former Member is not protected by theGovernment against any loss on such investment, and that a return on such investment is not guaranteed by the Government.

(2)

Prior to enrollment in the Thrift Savings Fund, or as soon as practicable thereafter, an individual who is automatically enrolled pursuant to section 8432(b)(2) shall receive the risk acknowledgment information described under paragraph (1).

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 555; amended Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title I, § 103]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–373; Pub. L. 104–316, title I, § 103(j), Oct. 19, 1996, 110 Stat. 3829; Pub. L. 106–65, div. A, title VI, § 661(a)(5), Oct. 5, 1999, 113 Stat. 672; Pub. L. 106–361, § 2(b)(4), (5), Oct. 27, 2000, 114 Stat. 1401; Pub. L. 108–469, § 1(d)(3), Dec. 21, 2004, 118 Stat. 3892; Pub. L. 111–31, div. B, title I, § 106(a), June 22, 2009, 123 Stat. 1855; Pub. L. 113–255, § 2(b), Dec. 18, 2014, 128 Stat. 2920.)

5 - 4 - 7 - 3 - 3 - 14 Tax treatment of the Thrift Savings Fund

(a)For purposes of the Internal Revenue Code of 1986—

(1)

the Thrift Savings Fund shall be treated as a trust described in section 401(a) of such Code which is exempt from taxation under section 501(a) of such Code;

(2)

any contribution to, or distribution from, the Thrift Savings Fund shall be treated in the same manner as contributions to or distributions from such a trust; and

(3)

subject to section 401(k)(4)(B) of such Code and any dollar limitation on the application of section 402(a)(8) of such Code, contributions to the Thrift Savings Fund shall not be treated as distributed or made available to an employee or Member nor as a contribution made to the Fund by an employee or Member merely because the employee or Member has, under the provisions of this subchapter and section 8351 of this title, an election whether the contribution will be made to the Thrift Savings Fund or received by the employee or Member in cash.

(b)Nondiscrimination requirements.—

Notwithstanding any other provision of law, the Thrift Savings Fund is not subject to the nondiscrimination requirements applicable to arrangements described in section 401(k) of title 26, United States Code, or to matching contributions (as described in section 401(m) of title 26, United States Code), so long as it meets the requirements of this section.

(c)

Subsection (a) shall not be construed to provide that any amount of the employee’s or Member’s basic pay which is contributed to the Thrift SavingsFund shall not be included in the term “wages” for the purposes of section 209 of the Social Security Act or section 3121(a) of the Internal Revenue Code of 1986.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 557; amended Pub. L. 100–202, § 101(m) [title VI, § 624(b)], Dec. 22, 1987, 101 Stat. 1329–390, 1329–430; Pub. L. 100–647, title I, § 1011A(m)(2), Nov. 10, 1988, 102 Stat. 3483; Pub. L. 102–378, § 2(69), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 103–353, § 5(e)(5), Oct. 13, 1994, 108 Stat. 3174.)

5 - 4 - 7 - 3 - 3 - 15 Justices and judges

(a)

(1)

A justice or judge of the United States as defined by section 451 of title 28may elect to contribute an amount of such individual’s basic pay to the Thrift Savings Fund. Basic pay does not include an annuity or salary received by a justice or judge who has retired under section 371(a) or (b) or section 372(a) of title 28, United States Code.

(2)

An election may be made under paragraph (1) as provided under section 8432(b) for individuals subject to this chapter.

(b)

(1)

Except as otherwise provided in this subsection, the provisions of this subchapter and subchapter VII shall apply with respect to justices and judges making contributions to the Thrift Savings Fund.

(2)

The amount contributed by a justice or judge for any pay period shall not exceed the maximum percentage of such justice’s or judge’s basic pay for such pay period allowable under section 8440f.

(3)

No contributions shall be made for the benefit of a justice or judge under section 8432(c) of this title.

(4)

Section 8433(b) of this title applies with respect to elections available to any justice or judge who retires under section 371(a) or (b) or section 372(a) of title 28. Retirement under section 371(a) or (b) or section 372(a) of title 28is a separation from service for the purposes of subchapters III and VII of chapter 84 of this title.

(5)

Section 8433(b) of this title applies to any justice or judge who resigns without having met the age and service requirements set forth in section 371(c) of title 28.

(6)

The provisions of section 8351(b)(5) of this title shall govern the rights of spouses of justices or judges contributing to the Thrift Savings Fund under this section.

(7)

Notwithstanding paragraphs (4) and (5), if any justice or judge retires under subsection (a) or (b) of section 371 or section 372(a) of title 28, or resigns without having met the age and service requirements set forth under section 371(c) of title 28, and such justice’s or judge’s nonforfeitable account balance is less than an amount that the Executive Director prescribes by regulation, the Executive Director shall pay the nonforfeitable account balance to the participant in a single payment.

(Added Pub. L. 100–654, title IV, § 401(a), Nov. 14, 1988, 102 Stat. 3847; amended Pub. L. 101–335, §§ 3(b)(2), 6(b)(2), July 17, 1990, 104 Stat. 320, 323; Pub. L. 102–378, § 2(70), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 103–226, § 9(e), (i)(17), Mar. 30, 1994, 108 Stat. 120, 122; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 205(a)]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–377; Pub. L. 106–361, § 2(b)(6), Oct. 27, 2000, 114 Stat. 1401; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–233; Pub. L. 108–469, § 1(d)(4), Dec. 21, 2004, 118 Stat. 3892.)

5 - 4 - 7 - 3 - 3 - 16 Bankruptcy judges and magistrate judges

(a)

(1)

A bankruptcy judge or magistrate judge who is covered by section 377 of title 28 or section 2(c) of the Retirement and Survivors’ Annuities for Bankruptcy Judges and Magistrates Act of 1988 may elect to contribute an amount of such individual’s basic pay to the Thrift Savings Fund.

(2)

An election may be made under paragraph (1) as provided under section 8432(b) for individuals subject to this chapter.

(b)

(1)

Except as otherwise provided in this subsection, the provisions of this subchapter and subchapter VII shall apply with respect to bankruptcy judges and magistrate judges who make contributions to the Thrift Savings Fundunder subsection (a) of this section.

(2)

The amount contributed by a bankruptcy judge or magistrate judge for any pay period shall not exceed the maximum percentage of such bankruptcy judge’s or magistrate judge’s basic pay for such pay period allowable under section 8440f.

(3)

No contributions shall be made under section 8432(c) of this title for the benefit of a bankruptcy judge or magistrate judge making contributions under subsection (a) of this section.

(4)

(A)

Section 8433(b) of this title applies to a bankruptcy judge or magistrate judge who elects to make contributions to the Thrift SavingsFund under subsection (a) of this section and who retires entitled to an immediate annuity under section 377 of title 28 (including a disability annuity under subsection (d) of such section) or section 2(c) of the Retirement and Survivors’ Annuities for Bankruptcy Judges and Magistrates Act of 1988.

(B)

Section 8433(b) of this title applies to any bankruptcy judge or magistrate judge who elects to make contributions to the Thrift SavingsFund under subsection (a) of this section and who retires before attaining age 65 but is entitled, upon attaining age 65, to an annuity under section 377 of title 28 or section 2(c) of the Retirement andSurvivors Annuities for Bankruptcy Judges and Magistrates Act of 1988.

(C)

Section 8433(b) of this title applies to any bankruptcy judge or magistrate judge who elects to make contributions to the Thrift SavingsFund under subsection (a) of this section and who retires before becoming entitled to an immediate annuity, or an annuity upon attaining age 65, under section 377 of title 28 or section 2(c) of the Retirement andSurvivors’ Annuities for Bankruptcy Judges and Magistrates Act of 1988.

(5)

With respect to bankruptcy judges and magistrate judges to whom this section applies, any of the actions described under paragraph (4)(A), (B), or (C) shall be considered a separation from service for purposes of this subchapter and subchapter VII.

(6)

For purposes of this section, the terms “retirement” and “retire” include removal from office under section 377(d) of title 28 on the sole ground of mental or physical disability.

(7)

In the case of a bankruptcy judge or magistrate judge who receives a distribution from the Thrift Savings Plan and who later receives an annuity under section 377 of title 28, that annuity shall be offset by an amount equal to the amount of the distribution which represents the Government’s contribution to that person’s Thrift Savings Account, without regard toearnings attributable to that amount. Where such an offset would exceed 50 percent of the annuity to be received in the first year, the offset may be divided equally over the first 2 years in which that person receives the annuity.

(8)

Notwithstanding paragraph (4), if any bankruptcy judge or magistrate judge retires under circumstances making such bankruptcy judge or magistrate judge eligible to make an election under subsection (b) of section 8433, and such bankruptcy judge’s or magistrate judge’s nonforfeitable account balance is less than an amount that the Executive Director prescribes by regulation, the Executive Director shall pay the nonforfeitable account balance to the participant in a single payment.

(Added Pub. L. 100–659, § 7(a), Nov. 15, 1988, 102 Stat. 3919, § 8440a; renumbered § 8440b and amended Pub. L. 101–335, §§ 3(b)(3), 6(b)(3), 9(a), July 17, 1990, 104 Stat. 320, 324, 326; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 103–226, § 9(f), Mar. 30, 1994, 108 Stat. 120; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 205(b)]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–377; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(3)], Dec. 21, 2000, 114 Stat. 2763, 2763A–233; Pub. L. 108–469, §§ 1(d)(5), 3(2), Dec. 21, 2004, 118 Stat. 3892, 3893.)

5 - 4 - 7 - 3 - 3 - 17 Court of Federal Claims judges

(a)

(1)

A judge of the United States Court of Federal Claims who is covered by section 178 of title 28 may elect to contribute an amount of such individual’sbasic pay to the Thrift Savings Fund.

(2)

An election may be made under paragraph (1) as provided under section 8432(b) for individuals subject to this chapter.

(b)

(1)

Except as otherwise provided in this subsection, the provisions of this subchapter and subchapter VII shall apply with respect to Court of Federal Claims judges who make contributions to the Thrift Savings Fund under subsection (a) of this section.

(2)

The amount contributed by a Court of Federal Claims judge for any pay period shall not exceed the maximum percentage of such judge’s basic payfor such pay period allowable under section 8440f.

(3)

No contributions shall be made under section 8432(c) of this title for the benefit of a Court of Federal Claims judge making contributions under subsection (a) of this section.

(4)

(A)

Section 8433(b) of this title applies to a Court of Federal Claims judge who elects to make contributions to the Thrift Savings Fund under subsection (a) of this section and who retires entitled to an annuity under section 178 of title 28 (including a disability annuity under subsection (c) of such section).

(B)

Section 8433(b) of this title applies to any Court of Federal Claims judge who elects to make contributions to the Thrift Savings Fund under subsection (a) of this section and who retires before becoming entitled to an annuity under section 178 of title 28.

(5)

With respect to Court of Federal Claims judges to whom this section applies, any of the actions described in paragraph (4)(A) or (B) shall be considered a separation from service for purposes of this subchapter and subchapter VII.

(6)

For purposes of this section, the terms “retirement” and “retire” include removal from office under section 178(c) of title 28 on the sole ground of mental or physical disability.

(7)

In the case of a Court of Federal Claims judge who receives a distribution from the Thrift Savings Plan and who later receives an annuity under section 178 of title 28, such annuity shall be offset by an amount equal to the amount of the distribution which represents the Government’s contribution to that person’s Thrift Savings Account, without regard to earnings attributable to that amount. Where such an offset would exceed 50 percent of the annuity to be received in the first year, the offset may be divided equally over the first 2 years in which that person receives the annuity.

(8)

Notwithstanding paragraph (4), if any Court of Federal Claims judge retires under circumstances making such judge eligible to make an election under section 8433(b), and such judge’s nonforfeitable account balance is less than an amount that the Executive Director prescribes by regulation, theExecutive Director shall pay the nonforfeitable account balance to the participant in a single payment.

(Added Pub. L. 101–650, title III, § 306(d)(1), Dec. 1, 1990, 104 Stat. 5110, § 8440b; renumbered § 8440c and amended Pub. L. 102–198, § 7(c)(1), Dec. 9, 1991, 105 Stat. 1624; Pub. L. 102–572, title IX, § 902(b), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 103–226, § 9(g), Mar. 30, 1994, 108 Stat. 121; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 205(c)]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–378; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(4)], Dec. 21, 2000, 114 Stat. 2763, 2763A–233; Pub. L. 108–469, § 1(d)(6), Dec. 21, 2004, 118 Stat. 3892.)

5 - 4 - 7 - 3 - 3 - 18 Judges of the United States Court of Appeals for Veterans Claims

(a)

(1)

A judge of the United States Court of Appeals for Veterans Claims may elect to contribute to the Thrift Savings Fund.

(2)

An election may be made under paragraph (1) as provided under section 8432(b) of this title for individuals subject to this chapter.

(b)

(1)

Except as otherwise provided in this subsection, the provisions of this subchapter and subchapter VII of this chapter shall apply with respect to a judge making contributions to the Thrift Savings Fund.

(2)

The amount contributed by a judge of the United States Court of Appeals for Veterans Claims for any pay period may not exceed the maximum percentage of such judge’s basic pay for such pay period allowable under section 8440f. Basic pay does not include any retired pay paid pursuant to section 7296 of title 38.

(3)

No contributions may be made for the benefit of a judge under section 8432(c) of this title.

(4)

Section 8433(b) of this title applies with respect to a judge who elects to make contributions to the Thrift Savings Fund and retires under section 7296(b) of title 38.

(5)

Section 8433(b) of this title applies in the case of a judge who elects to make contributions to the Thrift Savings Fund and thereafter ceases to serve as a judge of the United States Court of Appeals for Veterans Claims but does not retire under section 7296(b) of title 38.

(6)

The provisions of section 8351(b)(7) [1] of this title shall apply with respect to a judge who has elected to contribute to the Thrift Savings Fund under this section.

(Added Pub. L. 102–82, § 5(a)(1), Aug. 6, 1991, 105 Stat. 376, § 8440c; renumbered § 8440d, Pub. L. 102–198, § 7(c)(4)(A), Dec. 9, 1991, 105 Stat. 1625, as amended by Pub. L. 102–378, § 5(d)(1), Oct. 2, 1992, 106 Stat. 1358; amended Pub. L. 103–226, § 9(h), Mar. 30, 1994, 108 Stat. 121; Pub. L. 105–368, title V, § 512(b)(1)(A), (2)(A), Nov. 11, 1998, 112 Stat. 3342; Pub. L. 106–361, § 2(b)(6), Oct. 27, 2000, 114 Stat. 1401; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(5)], Dec. 21, 2000, 114 Stat. 2763, 2763A–233; Pub. L. 108–469, § 1(d)(7), Dec. 21, 2004, 118 Stat. 3892.)

5 - 4 - 7 - 3 - 3 - 19 Members of the uniformed services

(a)For purposes of this section—

(1)

the term “basic pay” means basic pay payable under section 204 of title 37;

(2)

the term “full TSP member” means a member described in subsection (e)(1);

(3)

the term “member” has the meaning given the term in section 211 of title 37; and

(4)

the term “Secretary concerned” has the meaning given the term in section 101 of title 37.

(b)

(1)

Any member eligible to participate in the Thrift Savings Plan by virtue of section 211(b) of title 37 may contribute to the Thrift Savings Fund.

(2)

(A)

Except as provided in subparagraph (B), an election to contribute to the Thrift Savings Fund under this section may be made as provided under section 8432(b).

(B)

(i)

Notwithstanding subparagraph (A), any individual who is a member as of the effective date that applies with respect to such individual under section 663 of the National Defense Authorization Act for Fiscal Year 2000 may make the first such election during the 60-day period beginning on such effective date.

(ii)

An election made under this subparagraph shall take effect on the first day of the first applicable pay period beginning after the close of the 60-day period referred to in clause (i).

(c)

Except as otherwise provided in this section, the provisions of this subchapter and subchapter VII shall apply with respect to members making contributions to the Thrift Savings Fund, and such members shall, for purposes of this subchapter and subchapter VII, be considered employees within the meaning of section 8401(11).

(d)

(1)

(A)

The amount contributed by a member described in section 211(a)(1) of title 37 for any pay period out of basic pay may not exceed the maximum percentage of such member’s basic pay for such pay period allowable under section 8440f.

(B)

The amount contributed by a member described in section 211(a)(2) of title 37 for any pay period out of any compensation received under section 206 of title 37 may not exceed the maximum percentage of suchmember’s compensation for such pay period (received under such section 206) allowable under section 8440f.

(2)

A member making contributions to the Thrift Savings Fund out of basic pay, or out of compensation under section 206 of title 37, may also contribute (by direct transfer to the Fund) any part of any special or incentive pay that such member receives under chapter 5 of title 37.

(3)

Nothing in this section or section 211 of title 37 shall be considered to waive any dollar limitation under the Internal Revenue Code of 1986 which otherwise applies with respect to the Thrift Savings Fund.

(e)Modernized Retirement System.—

(1)TSP contributions.—Notwithstanding any other provision of law, the Secretary concerned shall make contributions to the Thrift Savings Fund, in accordance with section 8432 (except to the extent the requirements under such section are modified by this subsection), for the benefit of a member—

(A)

who first enters a uniformed service on or after January 1, 2018; or

(B)who—

(i)

first entered a uniformed service before January 1, 2018;

(ii)

has completed fewer than 12 years of service in the uniformed services as of December 31, 2017; and

(iii)

makes the election described in section 1409(b)(4)(B) or 12729(f)(2) of title 10 to receive Thrift Savings Plan contributions under this subsection in exchange for the reduced multipliers described in section 1409(b)(4)(A) or 12739(f)(1) of title 10, as applicable, for purposes of calculating the retired pay of the member.

(2)Maximum amount.—

The amount contributed under this subsection by the Secretary concernedfor the benefit of a full TSP member for any pay period shall not be more than 5 percent of the member’s basic pay for such pay period. Any such contribution under this subsection, though in accordance with section 8432as provided in paragraph (1), is instead of, and not in addition to, amounts contributable under section 8432 as provided in section 8432(c).

(3)Timing and duration of contributions.—

(A)Automatic contributions.—The Secretary concerned shall make a contribution described in section 8432(c)(1) under this subsection for the benefit of a member described in paragraph (1) for any pay period during the period that—

(i)begins—

(I)

on or after the day that is 60 days afer the date the memberfirst enters a uniformed service, in the case of a memberdescribed in paragraph (1)(A); or

(II)

on or after the date the member makes the election described in paragraph (1)(B), in the case of a member making such an election; and

(ii)

ends on the day such member completes 26 years of service as a member of the uniformed services.

(B)Matching contributions.—The Secretary concerned shall make a contribution described in section 8432(c)(2) under this subsection for the benefit of a member described in paragraph (1) for any pay period during the period that—

(i)begins—

(I)

on or after the day that is 2 years and 1 day after the date the member first enters a uniformed service, in the case of a memberdescribed in paragraph (1)(A); or

(II)

on or after the date the member makes the election described in paragraph (1)(B), in the case of a member making such an election; and

(ii)

ends on the day such member completes 26 years of service as a member of the uniformed services.

(4)Protections for spouses and former spouses.—

Section 8435 shall apply to a full TSP member in the same manner as such section is applied to an employee or Member under such section.

(Added Pub. L. 106–65, div. A, title VI, § 661(a)(2)(A), Oct. 5, 1999, 113 Stat. 670; amended Pub. L. 106–398, § 1 [[div. A], title VI, § 661(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–167; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(6)], Dec. 21, 2000, 114 Stat. 2763, 2763A–233; Pub. L. 108–469, § 1(d)(8), Dec. 21, 2004, 118 Stat. 3892; Pub. L. 114–92, div. A, title VI, § 632(a), Nov. 25, 2015, 129 Stat. 845.)

5 - 4 - 7 - 3 - 3 - 20 Maximum percentage allowable for certain participants

(a)

The maximum percentage allowable under this section shall be determined in accordance with the following table:

In the case of a pay period beginning in fiscal year:	The maximum percentage allowable is:
2001	6
2002	7
2003	8
2004	9
2005	10
2006 or thereafter	100.

(b)

Notwithstanding any limitation under this section, an eligible participant (as defined by section 414(v) of the Internal Revenue Code of 1986) may make such additional contributions to the Thrift Savings Fund as are permitted by such section 414(v) and regulations of the Executive Director consistent therewith.

(Added Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 138(a)(7)(A)], Dec. 21, 2000, 114 Stat. 2763, 2763A–234; amended Pub. L. 107–304, § 1(b)(2), Nov. 27, 2002, 116 Stat. 2363.)

5 - 4 - 7 - 3 - 4 SURVIVOR ANNUITIES (§§ 8441 to 8445)

5 - 4 - 7 - 3 - 4 - 1 Definitions

For the purpose of this subchapter—

(1)the term “widow” means the surviving wife of an employee, Member, orannuitant, or of a former employee or Member, who—

(A)

was married to him for at least 9 months immediately before his death; or

(B)

is the mother of issue by that marriage;

(2)the term “widower” means the surviving husband of an employee, Member,or annuitant, or of a former employee or Member, who—

(A)

was married to her for at least 9 months immediately before her death; or

(B)

is the father of issue by that marriage;

(3)

the term “dependent”, in the case of any child, means that the employee,Member, or annuitant involved was, at the time of death of the employee,Member, or annuitant either living with or contributing to the support of such child, as determined in accordance with such regulations as the Office shall prescribe; and

(4)the term “child” means—

(A)

an unmarried dependent child under 18 years of age, including (i) an adopted child, (ii) a stepchild but only if the stepchild lived with the employee,Member, or annuitant in a regular parent-child relationship, (iii) a recognized natural child, and (iv) a child who lived with and for whom a petition of adoption was filed by an employee, Member, or annuitant and who is adopted by the widow or widower of the employee, Member, or annuitant after the death of such employee, Member, or annuitant;

(B)

such unmarried dependent child regardless of age who is incapable of self-support because of mental or physical disability incurred before age 18; or

(C)

For the purpose of this paragraph and section 8443, a child whose 22nd birthday occurs before July 1 or after August 31 of a calendar year, and while regularly pursuing such a course of study or training, is deemed to have become 22 years of age on the first day of July after that birthday. A childwho is a student is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 5 months and if such child shows to the satisfaction of the Office that such child has a bona fide intention of continuing to pursue a course of study or training in the same or different school during the school semester (or other period into which the school year is divided) immediately after the interim.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 558.)

5 - 4 - 7 - 3 - 4 - 2 Rights of a widow or widower

(a)

(1)Except as provided in subsection (g), if an annuitant dies and is survived by a widow or widower, the widow or widower is entitled to an annuity equal to 50 percent of an annuity computed under section 8415 with respect to the annuitant, (or one-half thereof, if designated for this purpose under section 8419 of this title), unless—

(A)

the right to an annuity was waived under section 8416(a) (and no election was subsequently made under section 8416(d) nullifying the waiver); or

(B)

in the case of a marriage after retirement, the annuitant did not file an election under section 8416(b) or (c), as the case may be.

(2)

A spouse acquired after retirement is entitled to an annuity under this subsection (as provided in paragraph (1)) only upon electing this annuity instead of any other survivor benefit to which such spouse may be entitled under this subchapter or section 8424 or under another retirement system for Government employees.

(b)

(1)If an employee or Member dies after completing at least 18 months of civilian service creditable under section 8411 and is survived by a widow or widower, the widow or widower is entitled to—

(A)an amount equal to the sum of—

(i)

50 percent of the final annual rate of basic pay (or of the average pay, if higher) of the employee or Member; and

(ii)

$15,000 as adjusted under section 8462(e); and

(B)

if the employee or Member completed at least 10 years of service, an annuity equal to 50 percent of an annuity computed under section 8415with respect to the employee or Member, but without regard to subsection (f) of such section.

(2)The Office shall prescribe regulations under which the total amount payable to a widow or widower under paragraph (1)(A) may, at the election of the widow or widower, be paid—

(A)

in a lump sum; or

(B)on a monthly basis—

(i)

over a period of 3 years beginning on the day after the employee’s or Member’s death; or

(ii)

over any other period established under the regulations.

Any method of payment provided for under subparagraph (B) shall be designed such that the present value of the benefits provided under such method is actuarially equivalent to the present value of a lump-sum payment under subparagraph (A).

(3)

An amount payable under paragraph (1)(A) shall not be considered to be part of an annuity for purposes of this chapter.

(c)

(1)If a former employee or Member dies after having separated from theservice with title to a deferred annuity under section 8413 but before having established a valid claim for an annuity, and is survived by a widow orwidower to whom married on the date of separation, the widow or widower may elect to receive—

(A)

an annuity under paragraph (2); or

(B)

the lump-sum credit, if the widow or widower is the individual who would be entitled to the lump-sum credit and if such widow or widowerfiles application therefor with the Office.

(2)

(A)

(i)

Subject to clause (ii) and subparagraph (B)(ii), the annuity of the widow or widower is equal to 50 percent of an annuity computed under section 8415 for the former employee or Member.

(ii)

(I)

In computing an amount under section 8415 for a formeremployee or Member (described in subclause (II)) in order to compute the annuity for a widow or widower under this subsection, the computation under section 8415 shall be made as if the former employee or Member had attained the applicable minimum retirement age under section 8412(h).

(II)

This clause applies with respect to a former employee orMember who dies before having attained the applicable minimum retirement age under section 8412(h).

(B)

(i)Notwithstanding the first sentence of subsection (d)(1), the annuity of the widow or widower of a former employee or Member under subparagraph (A)(ii) commences—

(I)

on the day after the date on which the former employee orMember would have attained age 62 (or, if applicable, either age 60 if the former employee or Member completed at least 20 years of service, or the applicable minimum retirement age (under section 8412(h)) if the former employee or Member completed at least 30 years of service); or

(II)

if the widow or widower so designates in the election, as of the day after the death of the former employee or Member.

(ii)

The present value of the annuity of a widow or widower who chooses the earlier commencement date under clause (i)(II) shall be actuarially equivalent to the present value of an annuity computed for the widow or widower, determined as if the commencement date under clause (i)(I) were applicable.

(3)

(A)

Paragraphs (1) and (2) shall apply only in the case of an employee orMember who completes at least 10 years of service.

(B)

Nothing in this subsection shall be considered to affect the provisions of this chapter relating to a lump-sum credit in the case of the widow or widower of a former employee or Member who dies after completing less than 10 years of service.

(d)

(1)The annuity of a widow or widower under this section commences on the day after the death of the individual on whose service such annuity is based. This annuity and the right thereto terminate on the last day of the month before the widow or widower—

(A)

dies; or

(B)

except as provided in paragraph (3), remarries before becoming 55 years of age.

(2)In the case of a widow or widower whose annuity under this section is terminated because of remarriage before becoming 55 years of age, the annuity shall be restored at the same rate commencing on the day the remarriage is dissolved by death, divorce, or annulment, if—

(A)

the widow or widower elects to receive this annuity instead of any other survivor benefit to which such widow or widower may be entitled (under this subchapter or section 8424 or under another retirementsystem for Government employees) by reason of the remarriage; and

(B)

any lump sum paid on termination of the annuity is returned to the Fund.

(3)

Paragraph (1)(B) (relating to termination of a survivor annuity because of a remarriage before age 55) shall not apply if the widow or widower was married for at least 30 years to the individual on whose service the survivor annuity is based.

(e)The requirement in paragraphs (1)(A) and (2)(A) of section 8441 that the widow or widower of an annuitant, employee, or Member, or of a formeremployee or Member, have been married to such individual for at least 9 months immediately before the death of the individual in order to qualify as thewidow or widower of such individual shall be deemed satisfied in any case in which the individual dies within the applicable 9-month period, if—

(1)

the death of the individual was accidental; or

(2)

the surviving spouse of the individual had been previously married to such individual and subsequently divorced, and the aggregate time married is at least 9 months.

(f)

(1)

Subject to paragraph (4), a survivor who is entitled to an annuity under subsection (a) shall also be entitled to a supplementary annuity under this subsection.

(2)A supplementary annuity under this subsection shall be equal to the lesser of—

(A)

the amount by which the survivor’s assumed CSRS annuity exceeds the annuity payable to such survivor under subsection (a); or

(B)

the amount determined under paragraph (3).

(3)

(A)Except as provided in subparagraph (B), the amount under this paragraph for a survivor is the amount of widow’s or widower’s insurance benefits which would be payable to such survivor under title II of the Social Security Act (without regard to sections 202(e)(7), 202(f)(2), and 203 of such Act) based on the wages and self-employment income of the deceased annuitant, and determined—

(i)

as of the date on which the annuitant died; and

(ii)

as if the survivor had attained age 60 and made application for those benefits under subsection (e) or (f) of section 202 of such Act, as the case may be.

(B)

Any computation or determination under this paragraph shall be made in accordance with the applicable provisions of the Social Security Act, except that in computing any primary insurance amount under section 215 of such Act for purposes of determining an amount under this subsection, subparagraphs (A) and (C) of section 8421(b)(2) shall apply.

(4)A supplementary annuity under this subsection—

(A)

shall be payable to a survivor only for calendar months ending before the calendar month in which such survivor first satisfies the minimum age requirement under section 202(e)(1)(B)(i) or 202(f)(1)(B)(i) of the Social Security Act, as the case may be;

(B)

shall not be payable to a survivor who would not be entitled to benefits under subsection (e) or (f) of section 202 of the Social Security Act based on the wages and self-employment income of the deceasedannuitant (determined, as of the date of the annuitant’s death, as if thesurvivor had attained age 60 and made appropriate application for benefits, but without regard to any restriction under either such subsection relating to remarriage); and

(C)

shall not be payable to a survivor for any calendar month in which such survivor is entitled (or would, on proper application, be entitled) to benefits under section 202(g) of the Social Security Act (relating to mother’s and father’s insurance benefits), or under section 202(e) or (f) of such Act by reason of having become disabled, based on the wages and self-employment income of the deceased annuitant.

(5)For the purpose of this subsection, the term “assumed CSRS annuity”, as used in the case of a survivor, means the amount of the annuity to which such survivor would be entitled under subchapter III of chapter 83 of this title based on the service of the deceased annuitant, determined—

(A)

as of the day after the date of the annuitant’s death;

(B)

as if the survivor had made appropriate application therefor; and

(C)

as if the service of the deceased annuitant were creditable under such subchapter.

(6)

An amount payable under this subsection shall be adjusted under section 8462 and shall otherwise be treated under this chapter in the same way as an amount payable under subsection (a).

(g)

(1)

If the widow or widower of an annuitant under section 8452 (hereinafter in this subsection referred to as a “disability annuitant”) is determined under subsection (a) to be entitled to an annuity based on the service of such disability annuitant, the annuity of the widow or widower shall be equal to 50 percent of the amount determined under paragraph (2) (or one-half thereof if designated for this purpose under section 8419 of this title), rather than of the amount referred to in subsection (a).

(2)

(A)

Except as provided in subparagraph (B), the amount on which the annuity of the widow or widower of a disability annuitant is based shall be the amount of the annuity to which such disability annuitant was entitled, as computed under section 8452 (including appropriate reduction under subsection (a)(2) of such section and any adjustments under section 8462 allowed under section 8452), as of the day before the date of the disability annuitant’s death.

(B)

(i)

In the case of a widow or widower entitled to an annuity based on the service of a disability annuitant who dies before age 62, the amount under clause (ii) shall apply instead of the amount which would otherwise apply under subparagraph (A).

(ii)

(I)

Subject to subclause (II), the amount of the annuity to which the disability annuitant was entitled as of the day before the date of death shall be considered to be the amount which would be computed with respect to such disability annuitant under section 8452(b) if the disability annuitant had attained age 62 on the day before date of death.

(II)

For purposes of any such computation under section 8452(b)(2) pursuant to this clause, creditable service shall (in addition to the service which would otherwise be used under subparagraph (B)(i) of such section) include the period of time between date of death and the date of the sixty-second anniversary of the birth of the annuitant, and average pay shall be adjusted in accordance with subparagraph (B)(ii) of such section only through date of death.

(h)The following rules shall apply notwithstanding any other provision of this section:

(1)The annuity payable under this section to a widow or widower may not exceed the difference between—

(A)

the amount of the annuity which would otherwise be payable to such widow or widower under this section; and

(B)

the amount of the annuity payable to any former spouse of the deceased employee, Member, or annuitant, or former employee orMember, based on an election made under section 8417(b) or a court order previously issued or agreement previously entered into as described in section 8445(a).

(2)The amount payable under subsection (b)(1)(A) to a widow or widowermay not exceed the difference between—

(A)

the amount which would otherwise be payable to such widow or widower under such subsection; and

(B)

the portion of such amount payable to any former spouse of the deceased employee, Member, or annuitant, or former employee orMember, based on a court order previously issued or agreement previously entered into.

(3)

A lump-sum credit under subsection (c)(2) shall be subject to the same terms and conditions as apply with respect to a lump-sum credit under section 8424(b).

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 559; amended Pub. L. 99–556, title I, § 120, Oct. 27, 1986, 100 Stat. 3134; Pub. L. 100–238, title I, § 131(b), Jan. 8, 1988, 101 Stat. 1760; Pub. L. 105–61, title V, § 518(b)(1), Oct. 10, 1997, 111 Stat. 1307.)

5 - 4 - 7 - 3 - 4 - 3 Rights of a child

(a)

(1)If an employee or Member dies after completing at least 18 months of civilian service which is creditable under section 8411, or an annuitant dies, each surviving child is, for any month, entitled to an annuity equal to—

(A)

the amount by which the applicable amount under paragraph (2) for such month exceeds the applicable amount under paragraph (3) for such month, divided by

(B)

the number of children entitled to a payment under this section for such month.

(2)

The applicable amount under this paragraph for any month is the total amount to which the surviving child or children (as the case may be) of the annuitant, employee, or Member would be entitled for such month under subchapter III of chapter 83 (including any adjustment based on section 8340) based on the service of such annuitant, employee, or Member, if theservice of such annuitant, employee, or Member were creditable under such subchapter.

(3)

The applicable amount under this paragraph for any month is the total amount of child’s insurance benefits which are payable (or would, on proper application, be payable) under title II of the Social Security Act for such month based on the wages and self-employment income of such annuitant,employee, or Member.

(b)The annuity of a child under this subchapter—

(1)

commences on the day after the annuitant, employee, or Member dies;

(2)

commences or resumes on the first day of the month in which the child later becomes or again becomes a student as described by section 8441(4), if any lump sum paid is returned to the Fund; or

(3)

commences or resumes on the first day of the month in which the child later becomes or again becomes incapable of self-support because of a mental or physical disability incurred before age 18 (or a later recurrence of such disability), if any lump sum paid is returned to the Fund.

This annuity and the right thereto terminate on the last day of the month before the child—

(A)

becomes 18 years of age unless then a student as described or incapable of self-support;

(B)

becomes capable of self-support after becoming 18 years of age unless then such a student;

(C)

becomes 22 years of age if then such a student and capable of self-support;

(D)

ceases to be such a student after becoming 18 years of age unless then incapable of self-support; or

(E)

dies or marries;

whichever occurs first. On the death of the surviving wife or husband, or former wife or husband, or termination of the annuity of a child, the annuity of any other child or children shall be recomputed and paid as though the wife or husband, former wife or husband, or child had not survived the annuitant, employee, or Member. If the annuity of a child under this subchapter terminates under subparagraph (E) because of marriage, then, if such marriage ends, such annuity shall resume on the first day of the month in which it ends, but only if any lump sum paid is returned to the Fund, and that individual is not otherwise ineligible for such annuity.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 563; amended Pub. L. 99–556, title I, § 117(a), Oct. 27, 1986, 100 Stat. 3134; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 633(a)(2)], Sept. 30, 1996, 110 Stat. 3009–314, 3009–363.)

5 - 4 - 7 - 3 - 4 - 4 Rights of a named individual with an insurable interest

The annuity of a survivor named under section 8420(a) is 55 percent of the reduced annuity of the retired employee or Member determined under paragraph (2) of such section 8420(a). The annuity of the survivor commences on the day after the retired employee or Member dies. This annuity and the right thereto terminate on the last day of the month before the survivor dies.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 563.)

5 - 4 - 7 - 3 - 4 - 5 Rights of a former spouse

(a)

Subject to subsections (b) through (e), a former spouse of a deceasedemployee, Member, or annuitant (or of a former employee or Member who dies after having separated from the service with title to a deferred annuity under section 8413 but before having established a valid claim for annuity) is entitled to an annuity under this section, if and to the extent expressly provided for in an election under section 8417(b), or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.

(b)

(1)The annuity payable to a former spouse under this section may not exceed the difference between—

(A)

the amount applicable in the case of such former spouse, as determined under paragraph (2); and

(B)

the amount of any annuity payable under this section to any other former spouse of the employee, Member, or annuitant, or formeremployee or Member, based on an election previously made under section 8417(b), or a court order previously issued or agreement previously entered into as described in subsection (a).

(2)

The applicable amount, for purposes of paragraph (1)(A) in the case of a former spouse, is the amount of the annuity which would be payable under the provisions of section 8442 (including subsection (f) of such section, but without regard to subsection (h) of such section) if such former spouse were a widow or widower entitled to an annuity under such provisions based on the service of the deceased employee, Member, or annuitant, or formeremployee or Member.

(c)The commencement and termination of an annuity payable under this section shall be governed by the terms of the applicable order, decree, agreement, or election, as the case may be, except that any such annuity—

(1)shall not commence before—

(A)

the day after the employee, Member, or annuitant, or formeremployee or Member, dies; or

(B)

whichever is later; and

(2)

except as provided in subsection (h), shall terminate no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies.

(d)For purposes of this chapter, a modification in a decree, order, agreement, or election referred to in subsection (a) shall not be effective—

(1)

if such modification is made after the retirement or death of the employee, Member, or annuitant, or former employee or Member,concerned; and

(2)

to the extent that such modification involves an annuity under this section.

(e)

For purposes of this chapter, a decree, order, agreement, or election referred to in subsection (a) shall not be effective, in the case of a former spouse, to the extent that it is inconsistent with any joint waiver previously executed with respect to such former spouse under section 8416(a).

(f)

(1)

Any amount under section 8442(b)(1)(A) which would otherwise be payable to a widow or widower based on the service of another individual shall be paid (in whole or in part) by the Office to a former spouse of such individual if and to the extent expressly provided for in the terms of a court decree of divorce, annulment, or legal separation, or the terms of a court order or court-approved property settlement incident to any decree of divorce, annulment, or legal separation.

(2)

Paragraph (1) shall apply only to payments made by the Office after the date of receipt in the Office of written notice of such decree, order, or agreement, and such additional information and documentation as the Office may prescribe.

(g)

Any payment under this section to a person bars recovery by any other person.

(h)

(1)

Subsection (c)(2) (to the extent that it provides for termination of a survivor annuity because of a remarriage before age 55) shall not apply if the former spouse was married for at least 30 years to the individual on whoseservice the survivor annuity is based.

(2)

A remarriage described in paragraph (1) shall not be taken into accountfor purposes of section 8419(b)(1)(B) or any other provision of this chapter which the Office may by regulation identify in order to carry out the purposes of this subsection.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 564; amended Pub. L. 105–61, title V, § 518(b)(2), Oct. 10, 1997, 111 Stat. 1308.)

5 - 4 - 7 - 3 - 5 DISABILITY BENEFITS (§§ 8451 to 8457)

5 - 4 - 7 - 3 - 5 - 1 Disability retirement

(a)

(1)

(A)

An employee who completes at least 18 months of civilian service creditable under section 8411 and has become disabled shall be retired on the employee’s own application or on application by the employee’s agency.

(B)

For purposes of this subsection, an employee shall be considered disabled only if the employee is found by the Office to be unable, because of disease or injury, to render useful and efficient service in the employee’s position.

(2)

(A)Notwithstanding paragraph (1), an employee shall not be eligible for disability retirement under this section if the employee has declined a reasonable offer of reassignment to a vacant position in the employee’s agency for which the employee is qualified if the position—

(i)

is at the same grade (or pay level) as the employee’s most recent grade (or pay level) or higher;

(ii)

is within the employee’s commuting area; and

(iii)

is one in which the employee would be able to render useful and efficient service.

(B)

An employee who is applying for disability retirement under this subchapter shall be considered for reassignment by the employee’s agency to a vacant position described in subparagraph (A) in accordance with such procedures as the Office shall by regulation prescribe.

(C)

An employee is entitled to appeal to the Merit Systems Protection Board under section 7701 any determination that the employee is not unable, because of disease or injury, to render useful and efficientservice in a position to which the employee has declined reassignment under this section.

(D)

For purposes of subparagraph (A), an employee of the United States Postal Service shall not be considered qualified for a position if such position is in a different craft or if reassignment to such position would be inconsistent with the terms of a collective-bargaining agreement covering the employee.

(b)

A Member who completes at least 18 months of service as a Member and is found by the Office to be disabled for useful and efficient service as a Member because of disease or injury shall be retired on the Member’s own application.

(c)

An employee or Member retiring under this section is entitled to an annuity computed under section 8452.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 565.)

5 - 4 - 7 - 3 - 5 - 2 Computation of disability annuity

(a)

(1)

(A)Except as provided in paragraph (2), or subsection (b), (c), or (d), the annuity of an annuitant under this subchapter—

(i)

for the period beginning on the date on which such annuity commences, or is restored (as described in section 8455(b)(2) or (3)), and ending at the end of the twelfth month beginning on or after such date, shall be equal to 60 percent of the annuitant’s average pay; and

(ii)

after the end of the period referred to in clause (i), shall be equal to 40 percent of the annuitant’s average pay.

(B)An annuity computed under this paragraph—

(i)

shall not, during any period referred to in subparagraph (A)(i), be adjusted under section 8462; but

(ii)

shall, after the end of any period referred to in subparagraph (A)(i), be adjusted to reflect all adjustments made under section 8462(b) after the end of the period referred to in subparagraph (A)(i), whether the amount actually payable to the annuitant under this section in any month is determined under this subsection or otherwise.

(2)

(A)For any month in which an annuitant is entitled both to an annuity under this subchapter as computed under paragraph (1) and to a disability insurance benefit under section 223 of the Social Security Act, the annuitant’s annuity for such month (as so computed) shall—

(i)

if such month occurs during a period referred to in paragraph (1)(A)(i), be reduced by 100 percent of the annuitant’s assumed disability insurance benefit for such month; or

(ii)

if such month occurs other than during a period referred to in paragraph (1)(A)(i), be reduced by 60 percent of the annuitant’s assumed disability insurance benefit for such month;

except that an annuity may not be reduced below zero by reason of this paragraph.

(B)

(i)For purposes of this paragraph, the assumed disability insurance benefit of an annuitant for any month shall be equal to—

(I)

the amount of the disability insurance benefit to which the annuitant is entitled under section 223 of the Social Security Actfor the month in which the annuity under this subchapter commences, or is restored, or, if no entitlement to such disability insurance benefits exists for such month, the first month thereafter for which the annuitant is entitled both to an annuity under this subchapter and disability insurance benefits under section 223 of the Social Security Act, adjusted by

(II)

all adjustments made under section 8462(b) after the end of the period referred to in paragraph (1)(A)(i) (or, if later, after the end of the month preceding the first month for which the annuitant is entitled both to an annuity under this subchapter and disability insurance benefits under section 223 of the Social Security Act) and before the start of the month involved (without regard to whether the annuitant’s annuity was affected by any of those adjustments).

(ii)

For purposes of applying section 224 of the Social Security Act to the assumed disability insurance benefit used to compute the reduction under this paragraph, the amount of the annuity under this subchapter which is considered shall be the amount of the annuity as determined before the application of this paragraph.

(3)

Section 8462 shall apply with respect to amounts under this subsection only as provided in paragraphs (1) and (2).

(b)

(1)

Except as provided in subsection (d), if an annuitant is entitled to an annuity under this subchapter as of the day before the date of the sixty-second anniversary of the annuitant’s birth (hereinafter in this section referred to as the annuitant’s “redetermination date”), such annuity shall be redetermined by the Office in accordance with paragraph (2). Effective as of the annuitant’s redetermination date, the annuity (as so redetermined) shall be in lieu of any annuity to which such annuitant would otherwise be entitled under this subchapter.

(2)

(A)

An annuity redetermined under this subsection shall be equal to the amount of the annuity to which the annuitant would be entitled under section 8415, taking into account the provisions of subparagraph (B).

(B)In performing a computation under this paragraph—

(i)

creditable service of an annuitant shall be increased by including any period (or periods) before the annuitant’s redetermination dateduring which the annuitant was entitled to an annuity under this subchapter; and

(ii)

the average pay which would otherwise be used shall be adjusted to reflect all adjustments made under section 8462(b) with respect to any period (or periods) referred to in clause (i) (without regard to whether the annuitant’s annuity was affected by any of those adjustments).

(c)Except as provided in subsection (d), the annuity of an annuitant under this subchapter shall be computed under section 8415 if—

(1)

such annuity commences, or is restored, beginning on or after the redetermination date of the annuitant; or

(2)

as of the day on which such annuity commences, or is restored, the annuitant satisfies the age and service requirements for entitlement to an annuity under section 8412 (other than subsection (g) of such section).

(d)

(1)

The annuity to which an annuitant is entitled under this section (after the reduction under subsection (a)(2), if applicable, has been made) shall not be less than the amount of an annuity computed under section 8415 (excluding subsection (h) of such section).

(2)In applying this subsection with respect to any annuitant, the amount of an annuity so computed under section 8415 shall be adjusted under section 8462 (including subsection (c) thereof)—

(A)to the same extent, and otherwise in the same manner, as if it were an annuity—

(i)

subject to adjustment under such section; and

(ii)

with a commencement date coinciding with the date the annuitant’s annuity commenced or was restored under this subchapter, as the case may be; and

(B)

whether the amount actually payable to the annuitant under this section in any month is determined under this subsection or otherwise.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 566; amended Pub. L. 99–556, title I, §§ 104, 106, Oct. 27, 1986, 100 Stat. 3131, 3132; Pub. L. 100–238, title I, § 122(a)–(c), Jan. 8, 1988, 101 Stat. 1753, 1754; Pub. L. 108–176, title II, § 226(b)(2)(B), Dec. 12, 2003, 117 Stat. 2530; Pub. L. 112–96, title V, § 5001(c)(2)(B), Feb. 22, 2012, 126 Stat. 200.)

5 - 4 - 7 - 3 - 5 - 3 Application

A claim may be allowed under this subchapter only if application is filed with the Office before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by the Office for an employee orMember who, at the date of separation from service or within 1 year thereafter, is mentally incompetent if the application is filed with the Office within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 568.)

5 - 4 - 7 - 3 - 5 - 4 Medical examination

An annuitant receiving a disability retirement annuity from the Fund shall be examined under the direction of the Office—

(1)

at the end of 1 year from the date of the disability retirement; and

(2)

annually thereafter until becoming 60 years of age;

unless the disability is permanent in character. If the annuitant fails to submit to examination as required by this section, payment of the annuity shall be suspended until continuance of the disability is satisfactorily established.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 568.)

5 - 4 - 7 - 3 - 5 - 5 Recovery; restoration of earning capacity

(a)

(1)

If an annuitant receiving a disability retirement annuity from the Fund recovers from the disability before becoming 60 years of age, payment of the annuity terminates on reemployment by the Government or 1 year after the date on which the Office determines that the annuitant has recovered, whichever is earlier.

(2)

If an annuitant receiving a disability annuity from the Fund, before becoming 60 years of age, is restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement, payment of the annuity terminates 180 days after the end of the calendar year in which earning capacity is so restored. Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.

(b)

(1)

If an annuitant whose annuity is terminated under subsection (a) is not reemployed in a position in which that individual is subject to this chapter, such individual is deemed, except for service credit, to have been involuntarily separated from the service for the purpose of subchapter II of this chapter as of the date of termination of the disability annuity, and after that termination is entitled to annuity under the applicable provisions of such subchapter.

(2)If an annuitant whose annuity is terminated under subsection (a)(2)—

(A)

is not reemployed in a position subject to this chapter; and

(B)

has not recovered from the disability for which that individual was retired;

the annuity of such individual shall be restored at the applicable rate under section 8452 effective the first of the year following any calendar year in which such individual’s income from wages or self-employment or both is less than 80 percent of the current rate of pay of the position occupied immediately before retirement.

(3)

If an annuitant whose annuity is terminated because of a medical finding that the individual has recovered from disability is not reemployed in a position in which such individual is subject to this chapter, the annuity of such individual shall be restored at the applicable rate under section 8452 effective from the date on which the Office determines that there has been a recurrence of the disability.

(4)

Paragraphs (2) and (3) shall not apply in the case of an annuitantreceiving an annuity from the Fund under subchapter II of this chapter.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 568.)

5 - 4 - 7 - 3 - 5 - 6 Military reserve technicians

(a)

(1)Except as provided in paragraph (2) or (3), an individual shall be retired under this subchapter if the individual—

(A)

is separated from employment as a military reserve technician by reason of a disability that disqualifies the individual from membership in a reserve component of the Armed Forces specified in section 10101 of title 10 or from holding the military grade required for such employment;

(B)

is not considered to be disabled under section 8451(a)(1)(B);

(C)

is not appointed to a position in the Government (whether under subsection (b) or otherwise); and

(D)

has not declined an offer of an appointment to a position in the Government under subsection (b).

(2)Payment of any annuity for an individual pursuant to this section terminates—

(A)

on the date the individual is appointed to a position in the Government (whether pursuant to subsection (b) or otherwise);

(B)

on the date the individual declines an offer of appointment to a position in the Government under subsection (b); or

(C)

as provided under section 8455(a).

(3)

An individual eligible to retire under section 8414(c) shall not be eligible to retire under this section.

(b)Any individual applying for or receiving any annuity pursuant to this section shall, in accordance with regulations prescribed by the Office, be considered by any agency of the Government before any vacant position in the agency is filled if—

(1)

the position is located within the commuting area of the individual’s former position;

(2)

the individual is qualified to serve in such position, as determined by the head of the agency; and

(3)

the position is at the same grade or equivalent level as the position from which the individual was separated.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 570, § 8457; amended Pub. L. 99–556, title I, § 118, Oct. 27, 1986, 100 Stat. 3134; renumbered § 8456, Pub. L. 100–238, title I, § 124(b)(1)(B), Jan. 8, 1988, 101 Stat. 1756; Pub. L. 103–337, div. A, title XVI, § 1677(a)(4), Oct. 5, 1994, 108 Stat. 3019.)

5 - 4 - 7 - 3 - 5 - 7 Renumbered § 8456]

5 - 4 - 7 - 3 - 6 GENERAL AND ADMINISTRATIVE PROVISIONS (§§ 8461 to 8470)

5 - 4 - 7 - 3 - 6 - 1 Authority of the Office of Personnel Management

(a)

The Office shall pay all benefits that are payable under subchapter II, IV, V, or VI of this chapter from the Fund.

(b)

The Office shall administer all provisions of this chapter not specifically required to be administered by the Board, the Executive Director, the Secretary of Labor, or any other officer or agency.

(c)

The Office shall adjudicate all claims under the provisions of this chapter administered by the Office.

(d)

The Office shall determine questions of disability and dependency arising under the provisions of this chapter administered by the Office. Except to the extent provided under subsection (e), the decisions of the Office concerning these matters are final and conclusive and are not subject to review. The Officemay direct at any time such medical or other examinations as it considers necessary to determine the facts concerning disability or dependency of an individual receiving or applying for annuity under the provisions of this chapter administered by the Office. The Office may suspend or deny annuity for failure to submit to examination.

(e)

(1)

Subject to paragraph (2), an administrative action or order affecting the rights or interests of an individual or of the United States under the provisions of this chapter administered by the Office may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.

(2)

In the case of any individual found by the Office to be disabled in whole or in part on the basis of the individual’s mental condition, and that finding was made pursuant to an application by an agency for purposes of disability retirement under section 8451, the procedures under section 7701 shall apply and the decision of the Board shall be subject to judicial review under section 7703.

(f)

The Office shall fix the fees for examinations made under subchapter V of this chapter by physicians or surgeons who are not medical officers of the United States. The fees and reasonable traveling and other expenses incurred in connection with the examinations are paid from appropriations for the cost of administering the provisions of this chapter administered by the Office.

(g)

The Office may prescribe regulations to carry out the provisions of this chapter administered by the Office.

(h)

(1)

Each Government agency shall furnish the Director with such information as the Director determines necessary in order to administer this chapter.

(2)

The Director, in consultation with the officials from whom such information is requested, shall establish (by regulation or otherwise) such safeguards as are necessary to ensure that information made available under this subsection is used only for the purpose authorized.

(i)

In making a determination of “actuarial equivalence” under this chapter, the economic assumptions used shall be the same as the economic assumptions most recently used by the Office (before the determination of actuarial equivalence involved) in determining the normal-cost percentage of the System.

(j)

(1)Notwithstanding any other provision of this chapter, the Director of Central Intelligence shall, in a manner consistent with the administration of this chapter by the Office, and to the extent considered appropriate by the Director of Central Intelligence—

(A)

determine entitlement to benefits under this chapter based on the service of employees of the Central Intelligence Agency;

(B)

maintain records relating to the service of such employees;

(C)

compute benefits under this chapter based on the service of such employees;

(D)

collect deposits to the Fund made by such employees, their spouses, their former spouses, and their survivors;

(E)

authorize and direct disbursements from the Fund to the extent based on service of such employees; and

(F)

perform such other functions under this chapter (other than under subchapters III and VII of this chapter) with respect to employees of the Central Intelligence Agency as the Director of Central Intelligence, in consultation with the Director of the Office of Personnel Management, determines to be appropriate.

(2)

(k)

(1)The Director of Central Intelligence, in consultation with the Executive Director of the Federal Retirement Thrift Investment Board, may—

(A)

maintain exclusive records relating to elections, contributions, and accounts under the Thrift Savings Plan provided in subchapter III of this chapter in the case of employees of the Central Intelligence Agency;

(B)

provide that contributions by, or on behalf of, such employees to the Thrift Savings Plan be accounted for by such Executive Director in aggregate amounts;

(C)

make the necessary disbursements from, and the necessary allocations of earnings, losses, and charges to, individual accounts of such employees under the Thrift Savings Plan; and

(D)

perform such other functions under subchapters III and VII of this chapter (but not including investing sums in the Thrift Savings Fund) with respect to employees of the Central Intelligence Agency as the Director of Central Intelligence, in consultation with the Executive Director of the Federal Retirement Thrift Investment Board, determines to be appropriate.

(2)

The Executive Director of the Federal Retirement Thrift Investment Boardmay not exercise authority under this chapter in the case of employees of the Central Intelligence Agency to the extent that the Director of Central Intelligence exercises authority provided in paragraph (1).

(3)

The Executive Director of the Federal Retirement Thrift Investment Boardshall furnish such information and, on a reimbursable basis, such services to the Director of Central Intelligence as the Director of Central Intelligence determines necessary to carry out this subsection.

(l)

Subsection (h)(1), and sections 8439(b) and 8474(c)(4), shall be applied with respect to information relating to employees of the Central Intelligence Agencyin a manner that protects intelligence sources, methods, and activities.

(m)

(1)

The Director of Central Intelligence, in consultation with the Director of the Office of Personnel Management and the Executive Director of the Federal Retirement Thrift Investment Board, shall by regulation prescribe appropriate procedures to carry out subsections (j), (k), and (l).

(2)

The regulations shall provide procedures for the Director of the Office of Personnel Management to inspect and audit disbursements from the Fund under this chapter.

(3)

The Director of Central Intelligence shall submit the regulations prescribed under paragraph (1) to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives before the regulations take effect.

(n)

(1)Under regulations prescribed by the Office, an employee who—

(A)

has not previously made an election under this subsection or had an opportunity to make an election under this paragraph; and

(B)

shall be given the opportunity to elect irrevocably, within 30 days after such move, to remain covered as an employee under this chapter during any employment described in section 2105(c) after such move.

(2)Under regulations prescribed by the Office, an employee of a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard described in section 2105(c), who—

(A)

has not previously made an election under this subsection or had an opportunity to make an election under this paragraph;

(B)

is a participant in a retirement system established for employeesdescribed in section 2105(c);

(C)

moves, without a break in service of more than 1 year, to a position that is not described by section 2105(c); and

(D)

is not eligible to make an election under section 8347(q),

shall be given the opportunity to elect irrevocably, within 30 days after such move, to remain covered, during any subsequent employment as an employee as defined by section 2105(a) or section 2105(c), by the retirement system applicable to such employee’s current or most recent employment described by section 2105(c) rather than be subject to this chapter.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 570; amended Pub. L. 99–556, title I, § 102, Oct. 27, 1986, 100 Stat. 3131; Pub. L. 101–508, title VII, § 7202(k)(2), Nov. 5, 1990, 104 Stat. 1388–339; Pub. L. 102–378, § 2(71), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 104–106, div. A, title X, § 1043(a)(2), Feb. 10, 1996, 110 Stat. 434; Pub. L. 107–107, div. A, title XI, § 1131(b), Dec. 28, 2001, 115 Stat. 1242.)

5 - 4 - 7 - 3 - 6 - 2 Cost-of-living adjustments

(a)For the purpose of this section—

(1)

the term “base quarter”, as used with respect to a year, means the calendar quarter ending on September 30 of such year;

(2)

the price index for a base quarter is the arithmetical mean of such index for the 3 months comprising such quarter; and

(3)the term “percent change in the price index”, as used with respect to a year, means the percentage derived by—

(A)reducing—

(i)

the price index for the base quarter of such year, by

(ii)

the price index for the base quarter of the preceding year in which an adjustment under this subsection was made;

(B)

dividing the difference under subparagraph (A) by the price indexreferred to in subparagraph (A)(ii); and

(C)

multiplying the quotient under subparagraph (B) by 100.

(b)

(1)Except as provided in subsection (c), effective December 1 of any year in which an adjustment under this subsection is to be made, as determined under paragraph (2), each annuity payable from the Fund under this chapter (other than an annuity under section 8443) having a commencing date not later than such December 1 shall be adjusted as follows:

(A)If the percent change in the price index for the year does not exceed 3 percent, each annuity subject to adjustment under this subsection shall be increased by the lesser of—

(i)

the percent change in the price index (rounded to the nearest one-tenth of 1 percent); or

(ii)

2 percent.

(B)If the percent change in the price index for the year exceeds 3 percent, each annuity subject to adjustment under this subsection shall be increased by the excess of—

(i)

the percent change in the price index (rounded to the nearest one-tenth of 1 percent), over

(ii)

1 percent.

(2)

An adjustment under this subsection shall be made in a year only if the price index for the base quarter of such year exceeds the price index for the base quarter of the preceding year in which an adjustment under this subsection was made.

(3)

An annuity under this chapter shall not be subject to adjustment under section 8340. Nothing in the preceding sentence shall affect the computation of any amount under section 8443(a)(2).

(c)Eligibility for an annuity increase under this section is governed by the commencing date of each annuity payable from the Fund as of the effective date of an increase, except as follows:

(1)The first increase (if any) made under subsection (b) to an annuity which is payable from the Fund to an annuitant or survivor (other than a child under section 8443) whose annuity has not been increased under this subsection or subsection (b) shall be equal to the product (adjusted to the nearest one-tenth of 1 percent) of—

(A)

one-twelfth of the applicable percent change computed under subsection (b), multiplied by

(B)the number of months (not to exceed 12 months, counting any portion of a month as a month)—

(i)

for which the annuity was payable from the Fund before the effective date of the increase; or

(ii)

in the case of a survivor of a deceased annuitant whose annuity has not been so increased, since the annuity was first payable to the deceased annuitant.

(2)

Effective from its commencing date, an annuity payable from the Fund to an annuitant’s survivor (other than a widow or widower whose annuity is computed under section 8442(g) or a child under section 8443) shall be increased by the total percentage by which the deceased annuitant’s annuity had been increased under this section during the period beginning on the date the deceased annuitant’s annuity commenced and ending on the date of the deceased annuitant’s death.

(3)

(A)

An adjustment under subsection (b) for any year shall not be effective with respect to the annuity of an annuitant who is under 62 years of age as of the date on which such adjustment would otherwise first take effect.

(B)

(i)

Except as provided in clause (ii), this paragraph applies only with respect to an annuitant under section 8412, 8413, or 8414.

(ii)

This paragraph does not apply with respect to an annuitant under subsection (d)(1) or (e) of section 8412 or (in the case of an annuitant separated from service as a military reserve technician as a result of disability) under section 8414(c).

(4)The first increase (if any) made under subsection (b) to an annuity which is payable from the Fund to a widow or widower whose annuity is computed under section 8442(g) shall be equal to the product (adjusted to the nearest one-tenth of 1 percent) of—

(A)

one-twelfth of the applicable percent change computed under subsection (b), multiplied by

(B)the number of months (not to exceed 12 months, counting any portion of a month as a month) since—

(i)

the effective date of the adjustment last made under this section in the annuity of the annuitant on whose service on the widow’s or widower’s annuity is based; or

(ii)

if the annuity of the annuitant (referred to in clause (i)) has not been increased under this section, the commencement date of such annuitant’s annuity (determined subject to section 8452(a)(1)(B)).

(d)

The monthly installment of an annuity after adjustment under this section shall be rounded to the next lowest dollar. However, the monthly installment shall, after adjustment, reflect an increase of at least $1.

(e)

The $15,000 amount referred to in section 8442(b)(1)(A)(ii) shall be increased at the same time that, and by the same percent as the percentage by which, annuities under subchapter III of chapter 83 are increased.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 572; amended Pub. L. 99–556, title I, § 117(b), Oct. 27, 1986, 100 Stat. 3134; Pub. L. 117–225, § 3(b)(2)(A)(vi), Dec. 9, 2022, 136 Stat. 2296.)

5 - 4 - 7 - 3 - 6 - 3 Rate of benefits

Each annuity payable from the Fund is stated as an annual amount, one-twelfth of which, rounded to the next lower dollar, constitutes the monthly rate payable on the first business day of the first month beginning after the month for which it has accrued.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 574.)

5 - 4 - 7 - 3 - 6 - 4 Commencement and termination of annuities of employees and Members

(a)

(1)Except as otherwise provided in this chapter—

(A)an annuity payable from the Fund commences on the first day of the month after—

(i)

separation from the service, in the case of an employee orMember retiring under section 8412, or subsection (a), (b)(1)(B), or (d) of section 8414; or

(ii)

pay ceases, and the applicable age and service requirements are met, in the case of an employee or Member retiring under section 8413;

(B)

an annuity payable from the Fund commences on the day after separation from the service in the case of an employee retiring under subsection (b)(1)(A) or (c) of section 8414; and

(C)

an annuity payable from the Fund commences on the day after separation from the service or the day after pay ceases and the requirements for title to an annuity are met in the case of an employeeor Member retiring under section 8451.

(2)Notwithstanding paragraph (1)(A)(i), an annuity payable from the Fundcommences on the day after separation from the service in the case of an employee or Member—

(A)

who retires under section 8412; and

(B)

whose separation occurs upon the expiration of a term (or other period) for which the individual was appointed or elected.

(b)

Except as otherwise provided in this chapter, the annuity of an annuitantunder subchapter II or V of this chapter terminates on the date death or other terminating event occurs.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 574; amended Pub. L. 105–261, div. A, title XI, § 1109(c)(2), Oct. 17, 1998, 112 Stat. 2145; Pub. L. 106–58, title VI, § 651(b), Sept. 29, 1999, 113 Stat. 480; Pub. L. 106–398, § 1 [[div. A], title XI, § 1152(c)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–323; Pub. L. 107–107, div. A, title X, § 1048(f)(2), Dec. 28, 2001, 115 Stat. 1228.)

5 - 4 - 7 - 3 - 6 - 5 Relationship between annuity and workers’ compensation

(a)

(1)An individual is not entitled to receive—

(A)

an annuity under subchapter II or V, and

(B)

compensation for injury to, or disability of, such individual under subchapter I of chapter 81, other than compensation payable under section 8107,

covering the same period of time.

(2)

An individual is not entitled to receive an annuity under subchapter IV and a concurrent benefit under subchapter I of chapter 81 on account of the death of the same person.

(3)

Paragraphs (1) and (2) do not bar the right of a claimant to the greater benefit conferred by either this chapter or subchapter I of chapter 81.

(b)If an individual is entitled to an annuity under subchapter II, IV, or V, and the individual receives a lump-sum payment for compensation under section 8135 based on the disability or death of the same person, so much of the compensation as has been paid for a period extended beyond the date payment of the annuity commences, as determined by the Department of Labor, shall be refunded to that Department for credit to the Employees’ Compensation Fund.Before the individual may receive the annuity, the individual shall—

(1)

refund to the Department of Labor the amount representing the commuted compensation payments for the extended period; or

(2)

authorize the deduction of the amount from the annuity.

Deductions from the annuity may be made from accrued or accruing payments. The amounts deducted and withheld from the annuity shall be transmitted to the Department of Labor for reimbursement to theEmployees’ Compensation Fund. When the Department of Labor finds that the financial circumstances of an individual entitled to an annuity under subchapter II, IV, or V warrant deferred refunding, deductions from the annuity may be prorated against and paid from accruing payments in such manner as the Department determines appropriate.

(Added Pub. L. 100–238, title I, § 124(a)(1)(B), Jan. 8, 1988, 101 Stat. 1755.)

5 - 4 - 7 - 3 - 6 - 6 Waiver, allotment, and assignment of benefits

(a)

An individual entitled to an annuity payable from the Fund may decline to accept all or any part of the amount of the annuity by a waiver signed and filed with the Office. The waiver may be revoked in writing at any time. Payment of the annuity waived may not be made for the period during which the waiver is in effect.

(b)

An individual entitled to an annuity payable from the Fund may make allotments or assignments of amounts from the annuity for such purposes as the Office considers appropriate.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 575.)

5 - 4 - 7 - 3 - 6 - 7 Application for benefits

(a)

No payment of benefits based on the service of an employee or Member shall be made from the Fund unless an application for payment of the benefits is received by the Office before the one hundred and fifteenth anniversary of the birth of the employee or Member.

(b)

Notwithstanding subsection (a), after the death of an employee, Member, or annuitant, or former employee or Member, a benefit based on the service of such employee, Member, or annuitant, or former employee or Member, shall not be paid under subchapter II or IV of this chapter unless an application therefor is received by the Office within 30 years after the death or other event which establishes the entitlement to the benefit.

(c)

(1)

(2)

(d)The Office may not authorize a person to receive payments on behalf of a minor or individual of legal disability under subsection (c) if that person has been convicted of a violation of—

(1)

section 8345a or 8466a;

(2)

section 208 or 1632 of the Social Security Act (42 U.S.C. 408, 1383a); or

(3)

section 6101 of title 38.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 575; amended Pub. L. 116–126, § 2(c)(2), (d)(2), Mar. 18, 2020, 134 Stat. 176.)

Embezzlement or conversion of payments

(a)Embezzling and Conversion Generally.—

(1)In general.—

(2)Revocation.—If the Office determines that a representative payee has embezzled or converted payments as described in paragraph (1), the Office shall promptly—

(A)

revoke the certification for payment of benefits to the representative payee; and

(B)certify payment—

(i)

to another representative payee; or

(ii)

if the interest of the individual under this title would be served thereby, to the individual.

(b)Penalty.—

Any person who violates subsection (a)(1) shall be fined under title 18, imprisoned for not more than 5 years, or both.

(Added Pub. L. 116–126, § 2(b)(2), Mar. 18, 2020, 134 Stat. 175.)

5 - 4 - 7 - 3 - 6 - 8 Court orders

(a)Payments under this chapter which would otherwise be made to an employee, Member, or annuitant (including an employee, Member, or annuitantas defined in section 8331) based on service of that individual shall be paid (in whole or in part) by the Office or the Executive Director, as the case may be, to another person if and to the extent expressly provided for in the terms of—

(1)

(2)

any court order or other similar process in the nature of garnishment for the enforcement of a judgment rendered against such employee, Member,or annuitant, for physically, sexually, or emotionally abusing a child.

In the event that the Office or the Executive Director, as the case may be, is served with more than 1 decree, order, or other legal process with respect to the same moneys due or payable to any individual, such moneys shall be available to satisfy such processes on a first-come, first-served basis, with any such process being satisfied out of such moneys as remain after the satisfaction of all such processes which have been previously served.

(b)

Subsection (a) shall apply only to payments made by the Office or the Executive Director under this chapter after the date on which the Office or the Executive Director (as the case may be) receives written notice of such decree, order, other legal process, or agreement, and such additional information and documentation as the Office or the Executive Director may require.

(c)For the purpose of this section—

(1)

(2)

the term “child” means an individual under 18 years of age.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 575; amended Pub. L. 103–358, § 2(b)(1)–(3), Oct. 14, 1994, 108 Stat. 3421.)

5 - 4 - 7 - 3 - 6 - 9 Annuities and pay on reemployment

(a)

If an annuitant, except a disability annuitant whose annuity is terminated because of the annuitant’s recovery or restoration of earning capacity, becomes employed in an appointive or elective position, an amount equal to the annuity allocable to the period of actual employment shall be deducted from the annuitant’s pay, except for lump-sum leave payment purposes under section 5551. Unless the annuitant’s appointment is on an intermittent basis or is to a position as a justice or judge (as defined by section 451 of title 28) or as anemployee subject to another retirement system for Government employees, or unless the annuitant is serving as President, deductions for the Fund shall be withheld from the annuitant’s pay under section 8422(a) and contributions under section 8423 shall be made. The deductions and contributions referred to in the preceding provisions of this subsection shall be deposited in the Treasury of the United States to the credit of the Fund. The annuitant’s lump-sum credit may not be reduced by annuity paid during the reemployment.

(b)

(1)

(A)

If an annuitant subject to deductions under the second sentence of subsection (a) serves on a full-time basis for at least 1 year, or on a part-time basis for periods equivalent to at least 1 year of full-time service,the annuitant’s annuity on termination of reemployment shall be increased by an annuity computed under section 8415(a) through (i) as may apply based on the period of reemployment and the basic pay,before deduction, averaged during the reemployment.

(B)

(i)

If the annuitant is receiving a reduced annuity as provided in section 8419, the increase in annuity payable under subparagraph (A) is reduced by 10 percent and the survivor annuity or combination of survivor annuities payable under section 8442 or 8445 (or both) is increased by 50 percent of the increase in annuity payable under subparagraph (A), unless, at the time of claiming the increase payable under subparagraph (A), the annuitant notifies the Office in writing that the annuitant does not desire the survivor annuity to be increased.

(ii)

If an annuitant who is subject to the deductions referred to in subparagraph (A) dies while still reemployed, after having been reemployed for not less than 1 year of full-time service (or the equivalent thereof, in the case of full-time [1] employment), thesurvivor annuity payable is increased as though the reemployment had otherwise terminated.

(2)

(A)

If an annuitant subject to deductions under the second sentence of subsection (a) serves on a full-time basis for at least 5 years, or on a part-time basis for periods equivalent to at least 5 years of full-time service,the annuitant may elect, instead of the benefit provided by paragraph (1), to have such annuitant’s rights redetermined under this chapter.

(B)

If an annuitant who is subject to the deductions referred to in subparagraph (A) dies while still reemployed, after having been reemployed for at least 5 years of full-time service (or the equivalent thereof in the case of part-time employment), any person entitled to asurvivor annuity under section 8442 or 8445 based on the service of such annuitant shall be permitted to elect, in accordance with regulations prescribed by the Office of Personnel Management, to have such person’s rights under subchapter IV redetermined. A redeterminedsurvivor annuity elected under this subparagraph shall be in lieu of an increased annuity which would otherwise be payable in accordance with paragraph (1)(B)(ii).

(3)

If an annuitant subject to deductions under the second sentence of subsection (a) serves on a full-time basis for a period of less than 1 year, or on a part-time basis for periods equivalent to less than 1 year of full-timeservice, the total amount withheld under section 8422(a) from theannuitant’s basic pay for the period or periods involved shall, upon written application to the Office, be payable to the annuitant (or the appropriatesurvivor or survivors, determined in the order set forth in section 8424(d)).

(c)

This section does not apply to an individual appointed to serve as a Governor of the Board of Governors of the United States Postal Service.

(d)

If an annuitant becomes employed as a justice or judge of the United States, as defined by section 451 of title 28, the annuitant may, at any time prior to resignation or retirement from regular active service as such a justice or judge, apply for and be paid, in accordance with section 8424(a), the amount (if any) by which the lump-sum credit exceeds the total annuity paid, notwithstanding the time limitation contained in such section for filing an application for payment.

(e)

A reference in this section to an “annuity” shall not be considered to include any amount payable from a source other than the Fund.

(f)

(1)The Director of the Office of Personnel Management may, at the request of the head of an Executive agency—

(A)

(B)

(2)

(g)

(1)

If warranted by circumstances described in subsection (f)(1)(A) or (B) (as applicable), the Director of the Administrative Office of the United States Courts shall, with respect to an employee in the judicial branch, have the same waiver authority as would be available to the Director of the Office of Personnel Management, or a duly authorized agency head, under subsection (f) with respect to an employee of an Executive agency.

(2)

Authority under this subsection may not be exercised with respect to a justice or judge of the United States, as defined in section 451 of title 28.

(h)

(1)

If warranted by circumstances described in subsection (f)(1)(A) or (B) (as applicable), an official or committee designated in paragraph (2) shall, with respect to the employees specified in the applicable subparagraph of such paragraph, have the same waiver authority as would be available to theDirector of the Office of Personnel Management, or a duly authorized agency head, under subsection (f) with respect to an employee of an Executive agency.

(2)Authority under this subsection may be exercised—

(A)

with respect to an employee of an agency in the legislative branch, by the head of such agency;

(B)

with respect to an employee of the House of Representatives, by the Committee on House Oversight of the House of Representatives; and

(C)

with respect to an employee of the Senate, by the Committee on Rules and Administration of the Senate.

(3)

(4)

(i)

(1)For purposes of this subsection—

(A)the term “head of an agency” means—

(i)

the head of an Executive agency, other than the Department of Defense or the Government Accountability Office;

(ii)

the head of the United States Postal Service;

(iii)

the Director of the Administrative Office of the United States Courts, with respect to employees of the judicial branch; and

(iv)

any employing authority described under subsection (h)(2), other than the Government Accountability Office; and

(B)

the term “limited time appointee” means an annuitant appointed under a temporary appointment limited to 1 year or less.

(2)The head of an agency may waive the application of subsection (a) with respect to any annuitant who is employed in such agency as a limited time appointee, if the head of the agency determines that the employment of theannuitant is necessary to—

(A)

fulfill functions critical to the mission of the agency, or any component of that agency;

(B)

(C)

assist in the development, management, or oversight of agency procurement actions;

(D)

assist the Inspector General for that agency in the performance of the mission of that Inspector General;

(E)

promote appropriate training or mentoring programs of employees;

(F)

assist in the recruitment or retention of employees; or

(G)

respond to an emergency involving a direct threat to life of property or other unusual circumstances.

(3)The head of an agency may not waive the application of subsection (a) with respect to an annuitant—

(A)

for more than 520 hours of service performed by that annuitantduring the period ending 6 months following the individual’s annuity commencing date;

(B)

for more than 1040 hours of service performed by that annuitantduring any 12-month period; or

(C)

for more than a total of 3120 hours of service performed by that annuitant.

(4)

(A)

The total number of annuitants to whom a waiver by the head of an agency under this subsection or section 8344(l) applies may not exceed 2.5 percent of the total number of full-time employees of that agency.

(B)If the total number of annuitants to whom a waiver by the head of an agency under this subsection or section 8344(l) applies exceeds 1 percent of the total number of full-time employees of that agency, the head of that agency shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Office of Personnel Management—

(i)

a report with an explanation that justifies the need for the waivers in excess of that percentage; and

(ii)

not later than 180 days after submitting the report under clause (i), a succession plan.

(5)

(A)

The Director of the Office of Personnel Management may promulgate regulations providing for the administration of this subsection.

(B)Any regulations promulgated under subparagraph (A) may—

(i)

provide standards for the maintenance and form of necessary records of employment under this subsection;

(ii)

to the extent not otherwise expressly prohibited by law, require employing agencies to provide records of such employment to the Office or other employing agencies as necessary to ensure compliance with paragraph (3);

(iii)

authorize other administratively convenient periods substantially equivalent to 12 months, such as 26 pay periods, to be used in determining compliance with paragraph (3)(B);

(iv)

include such other administrative requirements as the Directorof the Office of Personnel Management may find appropriate to provide for effective operation of, or to ensure compliance with, this subsection; and

(v)

encourage the training and mentoring of employees by any limited time appointee employed under this subsection.

(6)

(A)

(B)

(7)

The authority of the head of an agency under this subsection to waive the application of subsection (a) shall terminate on December 31, 2024.

(j)

(1)

For the purpose of subsections (f) through (i), “Executive agency” shall not include the Government Accountability Office.

(2)

An employee as to whom a waiver under subsection (f), (g), (h), or (i) is in effect shall not be considered an employee for purposes of this chapter or chapter 83 of this title.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 576; amended Pub. L. 100–238, title I, § 134(a), Jan. 8, 1988, 101 Stat. 1762; Pub. L. 101–509, title V, § 529 [title I, § 108(c)], Nov. 5, 1990, 104 Stat. 1427, 1450; Pub. L. 101–510, div. A, title XII, § 1206(j)(3), Nov. 5, 1990, 104 Stat. 1664; Pub. L. 102–190, div. A, title VI, § 655(c), Dec. 5, 1991, 105 Stat. 1392; Pub. L. 102–378, § 8(a), Oct. 2, 1992, 106 Stat. 1359; Pub. L. 105–55, title I, § 107, Oct. 7, 1997, 111 Stat. 1184; Pub. L. 105–61, title V, § 516(a)(9), Oct. 10, 1997, 111 Stat. 1307; Pub. L. 108–176, title II, § 226(b)(2)(C), Dec. 12, 2003, 117 Stat. 2530; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 111–84, div. A, title XI, § 1122(b), Oct. 28, 2009, 123 Stat. 2507; Pub. L. 112–96, title V, § 5001(c)(2)(C), Feb. 22, 2012, 126 Stat. 200; Pub. L. 113–291, div. A, title XI, § 1107(b), Dec. 19, 2014, 128 Stat. 3527; Pub. L. 116–92, div. A, title XI, § 1117(b), Dec. 20, 2019, 133 Stat. 1605.)

5 - 4 - 7 - 3 - 6 - 10 Withholding of State income taxes

(a)

The Office shall, in accordance with this section, enter into an agreement with any State within 120 days of a request for agreement from the proper Stateofficial. The agreement shall provide that the Office shall withhold State income tax in the case of the monthly annuity of any annuitant who voluntarily requests, in writing, such withholding. The amounts withheld during any calendar quarter shall be held in the Fund and disbursed to the States during the month following that calendar quarter.

(b)

An annuitant may have in effect at any time only one request for withholding under this section, and an annuitant may not have more than two such requests in effect during any one calendar year.

(c)

Subject to subsection (b), an annuitant may change the State designated by that annuitant for purposes of having withholdings made, and may request that the withholdings be remitted in accordance with such change. An annuitant also may revoke any request of that annuitant for withholding. Any change in theState designated or revocation is effective on the first day of the month after the month in which the request or the revocation is processed by the Office, but in no event later than on the first day of the second month beginning after the day on which such request or revocation is received by the Office.

(d)

This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on employers generally, or which subjects the United States or any annuitant to a penalty or liability because of this section. The Office may not accept pay from a State for services performed in withholding State income taxes from annuities. Any amount erroneously withheld from an annuity and paid to a State by the Office shall be repaid by the State in accordance with regulations issued by the Office.

(e)For the purpose of this section—

(1)

the term “State” means a State, the District of Columbia, or any territory or possession of the United States; and

(2)

the term “annuitant” includes a survivor who is receiving an annuity from the Fund.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 576.)

5 - 4 - 7 - 3 - 6 - 11 Exemption from legal process; recovery of payments

(a)

An amount payable under subchapter II, IV, or V of this chapter is not assignable, either in law or equity, except under the provisions of section 8465or 8467, or subject to execution, levy, attachment, garnishment or other legal process, except as otherwise may be provided by Federal laws.

(b)

Recovery of payments under subchapter II, IV, or V of this chapter may not be made from an individual when, in the judgment of the Office, the individual is without fault and recovery would be against equity and good conscience. Withholding or recovery of money paid under subchapter II, IV, or V of this chapter on account of a certification or payment made by a former employee of the United States in the discharge of his official duties may be made only if the head of the agency on behalf of which the certification or payment was made certifies to the Office that the certification or payment involved fraud on the part of the former employee.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 577.)

5 - 4 - 7 - 3 - 7 FEDERAL RETIREMENT THRIFT INVESTMENT MANAGEMENT SYSTEM (§§ 8471 to 8480)

5 - 4 - 7 - 3 - 7 - 1 Definitions

For the purposes of this subchapter—

(1)

the term “beneficiary” means an individual (other than a participant) entitled to payment from the Thrift Savings Fund under subchapter III of this chapter;

(2)

the term “Council” means the Employee Thrift Advisory Council established under section 8473 of this title;

(3)

the term “participant” means an individual for whom an account has been established under section 8439 of this title;

(4)

the term “person” means an individual, partnership, joint venture, corporation, mutual company, joint-stock company, trust, estate, unincorporated organization, association, or labor organization; and

(5)

the term “Thrift Savings Fund” means the Thrift Savings Fund established under section 8437 of this title.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 577.)

5 - 4 - 7 - 3 - 7 - 2 Federal Retirement Thrift Investment Board

(a)

There is established in the Executive branch of the Government a Federal Retirement Thrift Investment Board.

(b)The Board shall be composed of—

(1)

3 members appointed by the President, of whom 1 shall be designated by the President as Chairman; and

(2)2 members appointed by the President, of whom—

(A)

1 shall be appointed by the President after taking into consideration the recommendation made by the Speaker of the House of Representatives in consultation with the minority leader of the House of Representatives; and

(B)

1 shall be appointed by the President after taking into consideration the recommendation made by the majority leader of the Senate in consultation with the minority leader of the Senate.

(c)

Except as provided in section 311 of the Federal Employees’ RetirementSystem Act of 1986, appointments under subsection (a) shall be made by and with the advice and consent of the Senate.

(d)

Members of the Board shall have substantial experience, training, and expertise in the management of financial investments and pension benefit plans.

(e)

(1)Except as provided in section 311 of the Federal Employees’ RetirementSystem Act of 1986, a member of the Board shall be appointed for a term of 4 years, except that of the members first appointed (other than themembers appointed under such section)—

(A)

the Chairman shall be appointed for a term of 4 years;

(B)

the members appointed under subsection (b)(2) shall be appointed for terms of 3 years; and

(C)

the remaining members shall be appointed for terms of 2 years.

(2)

(A)

A vacancy on the Board shall be filled in the manner in which the original appointment was made and shall be subject to any conditions which applied with respect to the original appointment.

(B)

An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.

(3)

The term of any member shall not expire before the date on which the member’s successor takes office.

(f)The Board shall—

(1)establish policies for—

(A)

the investment and management of the Thrift Savings Fund; and

(B)

the administration of subchapter III of this chapter;

(2)

review the performance of investments made for the Thrift Savings Fund; and

(3)

review and approve the budget of the Board.

(g)

(1)The Board may—

(A)

adopt, alter, and use a seal;

(B)

except as provided in paragraph (2), direct the Executive Director to take such action as the Board considers appropriate to carry out the provisions of this subchapter and subchapter III of this chapter and the policies of the Board;

(C)

upon the concurring votes of four members, remove the Executive Director from office for good cause shown; and

(D)

take such other actions as may be necessary to carry out the functions of the Board.

(2)

Except in the case of investments under section 8438(c)(2)(B), the Boardmay not direct the Executive Director to invest or to cause to be invested any sums in the Thrift Savings Fund in a specific asset or to dispose of or cause to be disposed of any specific asset of such Fund.

(h)

The members of the Board shall discharge their responsibilities solely in the interest of participants and beneficiaries under this subchapter and subchapter III of this chapter.

(i)

The Board shall prepare and submit to the President, and, at the same time, to the appropriate committees of Congress, an annual budget of the expenses and other items relating to the Board which shall be included as a separate item in the budget required to be transmitted to the Congress under section 1105 of title 31.

(j)

The Board may submit to the President, and, at the same time, shall submit to each House of the Congress, any legislative recommendations of the Board relating to any of its functions under this title or any other provision of law.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 578; amended Pub. L. 99–509, title VI, § 6001(e), Oct. 21, 1986, 100 Stat. 1931; Pub. L. 113–255, § 2(c), Dec. 18, 2014, 128 Stat. 2920.)

5 - 4 - 7 - 3 - 7 - 3 Employee Thrift Advisory Council

(a)

The Board shall establish an Employee Thrift Advisory Council. The Councilshall be composed of 15 members appointed by the Chairman of the Board in accordance with subsection (b).

(b)The Chairman shall appoint 15 members of the Council, of whom—

(1)

4 shall be appointed to represent the respective labor organizations representing (as exclusive representatives) the first, second, third, and fourth largest numbers of individuals subject to chapter 71 of this title;

(2)

2 shall be appointed to represent the respective labor organizations which have been accorded exclusive recognition under section 1203(a) of title 39 representing the largest and second largest numbers of individuals employed by the United States Postal Service;

(3)

1 shall be appointed to represent the labor organization which has been accorded exclusive recognition under section 1203(a) of title 39 representing the largest number of individuals employed by the United States Postal Service as rural letter carriers;

(4)

2 shall be appointed to represent the respective managerial organizations (other than an organization described in paragraph (5)) which consult with the United States Postal Service under section 1004(b) of title 39 and which represent the largest and second largest numbers of individuals employed by the United States Postal Service as managerial personnel;

(5)

1 shall be appointed to represent the supervisors’ organization as defined in section 1004(h) of title 39;

(6)

1 shall be appointed to represent employee organizations having as a purpose promoting the interests of women in Government service;

(7)

1 shall be appointed to represent the organization representing the largest number of individuals receiving annuities under this chapter or chapter 83 of this title;

(8)

1 shall be appointed to represent the organization representing the largest number of supervisors and management officials (as defined by section 7103(a));

(9)

1 shall be appointed to represent the organization representing the largest number of members of the Senior Executive Service; and

(10)

1 shall be appointed to represent participants (under section 8440e) who are members of the uniformed services.

(c)

(1)

The Chairman of the Board shall designate 1 member of the Council to serve as head of the Council.

(2)

A member of the Council shall be appointed for a term of 4 years.

(3)

(A)

A vacancy in the Council shall be filled in the manner in which the original appointment was made and shall be subject to any conditions which applied with respect to the original appointment.

(B)

An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.

(C)

The term of any member shall not expire before the date on which the member’s successor takes office.

(d)

The Council shall act by resolution of a majority of the members.

(e)The Council shall—

(1)advise the Board and the Executive Director on matters relating to—

(A)

investment policies for the Thrift Savings Fund; and

(B)

the administration of this subchapter and subchapter III of this chapter; and

(2)

perform such other duties as the Board may direct with respect to investment funds established in accordance with subchapter III of this chapter.

(f)

Section 1013(a) of this title shall not apply to the Council.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 579; amended Pub. L. 103–89, § 3(b)(1)(N), Sept. 30, 1993, 107 Stat. 982; Pub. L. 106–65, div. A, title VI, § 661(a)(6), Oct. 5, 1999, 113 Stat. 672; Pub. L. 117–286, § 4(a)(10), Dec. 27, 2022, 136 Stat. 4306.)

5 - 4 - 7 - 3 - 7 - 4 Executive Director

(a)

(1)

The Board shall appoint, without regard to the provisions of law governing appointments in the competitive service, an Executive Director by action agreed to by a majority of the members of the Board.

(2)

The Executive Director shall have substantial experience, training, and expertise in the management of financial investments and pension benefit plans.

(b)The Executive Director shall—

(1)

carry out the policies established by the Board;

(2)

invest and manage the Thrift Savings Fund in accordance with the investment policies and other policies established by the Board;

(3)

purchase annuity contracts and provide for the payment of other benefits under subchapter III of this chapter;

(4)

administer the provisions of this subchapter and subchapter III of this chapter;

(5)

prescribe such regulations (other than regulations relating to fiduciary responsibilities) as may be necessary for the administration of this subchapter and subchapter III of this chapter; and

(6)

meet from time to time with the Council upon request of the Council.

(c)The Executive Director may—

(1)

prescribe such regulations as may be necessary to carry out the responsibilities of the Executive Director under this section, other than regulations relating to fiduciary responsibilities;

(2)

appoint such personnel as may be necessary to carry out the provisions of this subchapter and subchapter III of this chapter;

(3)

subject to approval by the Board, procure the services of experts and consultants under section 3109 of this title;

(4)

secure directly from an Executive agency, the United States Postal Service, or the Postal Regulatory Commission any information necessary to carry out the provisions of this subchapter or subchapter III of this chapter and policies of the Board;

(5)

make such payments out of sums in the Thrift Savings Fund as theExecutive Director determines are necessary to carry out the provisions of this subchapter and subchapter III of this chapter and the policies of theBoard;

(6)

pay the compensation, per diem, and travel expenses of individuals appointed under paragraphs (2), (3), and (7) of this subsection from the Thrift Savings Fund;

(7)

accept and use the services of individuals employed intermittently in the Government service and reimburse such individuals for travel expenses, as authorized by section 5703 of this title, including per diem as authorized by section 5702 of this title;

(8)

except as otherwise expressly prohibited by law or the policies of the Board, delegate any of the Executive Director’s functions to such employees under the Board as the Executive Director may designate and authorize such successive redelegations of such functions to such employees under theBoard as the Executive Director may consider to be necessary or appropriate; and

(9)

take such other actions as are appropriate to carry out the functions of the Executive Director.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 580; amended Pub. L. 109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat. 3241.)

5 - 4 - 7 - 3 - 7 - 5 Investment policies

The Board shall develop investment policies under section 8472(f)(1) of this titlewhich provide for—

(1)

prudent investments suitable for accumulating funds for payment of retirement income; and

(2)

low administrative costs.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 581.)

5 - 4 - 7 - 3 - 7 - 6 Administrative provisions

(a)The Board shall meet—

(1)

not less than once during each month; and

(2)

at additional times at the call of the Chairman.

(b)

(1)

Except as provided in sections 8472(g)(1)(C) and 8474(a)(1) of this title, theBoard shall perform the functions and exercise the powers of the Board on a majority vote of a quorum of the Board.

(2)

A vacancy on the Board shall not impair the authority of a quorum of the Board to perform the functions and exercise the powers of the Board.

(c)

Three members of the Board shall constitute a quorum for the transaction of business.

(d)

(1)

Each member of the Board who is not an officer or employee of the Federal Government shall be compensated at the daily rate of basic pay for level IV of the Executive Schedule for each day during which such member is engaged in performing a function of the Board.

(2)

A member of the Board shall be paid travel, per diem, and other necessary expenses under subchapter I of chapter 57 of this title while traveling away from such member’s home or regular place of business in the performance of the duties of the Board.

(3)

Payments authorized under this subsection shall be paid from the Thrift Savings Fund.

(e)

The accrued annual leave of any employee who is a member of the Board or the Council shall not be charged for any time used in performing services for theBoard or the Council.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 581; amended Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(K)], Nov. 5, 1990, 104 Stat. 1427, 1442.)

5 - 4 - 7 - 3 - 7 - 7 Fiduciary responsibilities; liability and penalties

(a)For the purposes of this section—

(1)

the term “account” is not limited by the definition provided in section 8401(1);

(2)the term “adequate consideration” means—

(A)in the case of a security for which there is a generally recognized market—

(i)

the price of the security prevailing on a national securities exchange which is registered under section 6 of the Securities Exchange Act of 1934; or

(ii)

if the security is not traded on such a national securities exchange, a price not less favorable to the Thrift Savings Fund than the offering price for the security as established by the current bid and asked prices quoted by persons independent of the issuer and of any party in interest; and

(B)

in the case of an asset other than a security for which there is a generally recognized market, the fair market value of the asset as determined in good faith by a fiduciary or fiduciaries in accordance with regulations prescribed by the Secretary of Labor;

(3)the term “fiduciary” means—

(A)

a member of the Board;

(B)

the Executive Director;

(C)

any person who has or exercises discretionary authority or discretionary control over the management or disposition of the assets of the Thrift Savings Fund; and

(D)

any person who, with respect to the Thrift Savings Fund, is described in section 3(21)(A) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(21)(A)); and

(4)the term “party in interest” includes—

(A)

any fiduciary;

(B)

any counsel to a person who is a fiduciary, with respect to the actions of such person as a fiduciary;

(C)

any participant;

(D)

any person providing services to the Board and, with respect to the actions of the Executive Director as a fiduciary any person providingservices to the Executive Director;

(E)

a labor organization, the members of which are participants;

(F)

a spouse, sibling, ancestor, lineal descendant, or spouse of a lineal descendant of a person described in subparagraph (A), (B), or (D);

(G)a corporation, partnership, or trust or estate of which, or in which, at least 50 percent of—

(i)

the combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of such corporation;

(ii)

the capital interest or profits interest of such partnership; or

(iii)

the beneficial interest of such trust or estate,

is owned directly or indirectly, or held by a person described in subparagraph (A), (B), (D), or (E);

(H)

an official (including a director) of, or an individual employed by, a person described in subparagraph (A), (B), (D), (E), or (G), or an individual having powers or responsibilities similar to those of such an official;

(I)

a holder (directly or indirectly) of at least 10 percent of the shares in a person described in any subparagraph referred to in subparagraph (H); and

(J)

a person who, directly or indirectly, is at least a 10 percent partner or joint venturer (measured in capital or profits) in a person described in any subparagraph referred to in subparagraph (H).

(b)

(1)To the extent not inconsistent with the provisions of this chapter and the policies prescribed by the Board, a fiduciary shall discharge his responsibilities with respect to the Thrift Savings Fund or applicable portion thereof solely in the interest of the participants and beneficiaries and—

(A)for the exclusive purpose of—

(i)

providing benefits to participants and their beneficiaries; and

(ii)

defraying reasonable expenses of administering the Thrift Savings Fund or applicable portions thereof;

(B)

with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent individual acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like objectives; and

(C)

to the extent permitted by section 8438 of this title, by diversifying the investments of the Thrift Savings Fund or applicable portions thereof so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so.

(2)

No fiduciary may maintain the indicia of ownership of any assets of theThrift Savings Fund outside the jurisdiction of the district courts of the United States.

(c)

(1)A fiduciary shall not permit the Thrift Savings Fund to engage in any of the following transactions, except in exchange for adequate consideration:

(A)

A transfer of any assets of the Thrift Savings Fund to any person the fiduciary knows or should know to be a party in interest or the use of such assets by any such person.

(B)

An acquisition of any property from or sale of any property to the Thrift Savings Fund by any person the fiduciary knows or should know to be a party in interest.

(C)

A transfer or exchange of services between the Thrift Savings Fundand any person the fiduciary knows or should know to be a party in interest.

(2)Notwithstanding paragraph (1), a fiduciary with respect to the Thrift Savings Fund shall not—

(A)

deal with any assets of the Thrift Savings Fund in his own interest or for his own account;

(B)

act, in an individual capacity or any other capacity, in any transaction involving the Thrift Savings Fund on behalf of a party, or representing a party, whose interests are adverse to the interests of the Thrift Savings Fund or the interests of its participants or beneficiaries; or

(C)

receive any consideration for his own personal account from any party dealing with sums credited to the Thrift Savings Fund in connection with a transaction involving assets of the Thrift Savings Fund.

(3)

(A)

The Secretary of Labor may, in accordance with procedures which the Secretary shall by regulation prescribe, grant a conditional or unconditional exemption of any fiduciary or transaction, or class of fiduciaries or transactions, from all or part of the restrictions imposed by paragraph (2).

(B)

An exemption granted under this paragraph shall not relieve a fiduciary from any other applicable provision of this chapter.

(C)The Secretary of Labor may not grant an exemption under this paragraph unless he finds that such exemption is—

(i)

administratively feasible;

(ii)

in the interests of the Thrift Savings Fund and of its participants and beneficiaries; and

(iii)

protective of the rights of participants and beneficiaries of suchFund.

(D)An exemption under this paragraph may not be granted unless—

(i)

notice of the proposed exemption is published in the Federal Register;

(ii)

interested persons are given an opportunity to present views; and

(iii)

the Secretary of Labor affords an opportunity for a hearing and makes a determination on the record with respect to the respective requirements of clauses (i), (ii), and (iii) of subparagraph (C).

(E)

Notwithstanding subparagraph (D), the Secretary of Labor may determine that an exemption granted for any class of fiduciaries or transactions under section 408(a) of the Employee Retirement Income Security Act of 1974 shall, upon publication of notice in the Federal Register under this subparagraph, constitute an exemption for purposes of the provisions of paragraph (2).

(d)This section does not prohibit any fiduciary from—

(1)

receiving any benefit which the fiduciary is entitled to receive under this subchapter or subchapter III of this chapter as a participant or beneficiary;

(2)

receiving any reasonable compensation authorized by this subchapter for services rendered, or for reimbursement of expenses properly and actually incurred, in the performance of the fiduciary’s duties under this chapter; or

(3)

serving as a fiduciary in addition to being an officer, employee, agent, or other representative of a party in interest.

(e)

(1)

(A)

Any fiduciary that breaches the responsibilities, duties, and obligations set out in subsection (b) or violates subsection (c) shall be personally liable to the Thrift Savings Fund for any losses to such Fund resulting from each such breach or violation and to restore to such Fund any profits made by the fiduciary through use of assets of such Fund by the fiduciary, and shall be subject to such other equitable or remedial relief as a court considers appropriate, except as provided in paragraphs (3) and (4) of this subsection. A fiduciary may be removed for a breach referred to in the preceding sentence.

(B)

The Secretary of Labor may assess a civil penalty against a party in interest with respect to each transaction which is engaged in by the party in interest and is prohibited by subsection (c). The amount of such penalty shall be equal to 5 percent of the amount involved in each such transaction (as defined in section 4975(f)(4) of the Internal Revenue Code of 1986) for each year or part thereof during which the prohibited transaction continues, except that, if the transaction is not corrected (in such manner as the Secretary of Labor shall prescribe by regulation consistent with section 4975(f)(5) of such Code) within 90 days after the date the Secretary of Labor transmits notice to the party in interest (or such longer period as the Secretary of Labor may permit), such penalty may be in an amount not more than 100 percent of the amount involved.

(C)

(i)

A fiduciary shall not be liable under subparagraph (A) with respect to a breach of fiduciary duty under subsection (b) committed before becoming a fiduciary or after ceasing to be a fiduciary.

(ii)A fiduciary shall not be liable under subparagraph (A), and no civil action may be brought against a fiduciary—

(I)

for providing for the automatic enrollment of a participant in accordance with section 8432(b)(2)(A);

(II)

for enrolling a participant or beneficiary in a default investment fund or option in accordance with section 8438(c)(2); or

(III)

for allowing a participant or beneficiary to invest through the mutual fund window or for establishing restrictions applicable toparticipants’ or beneficiaries’ ability to invest through the mutualfund window.

(D)A fiduciary shall be jointly and severally liable under subparagraph (A) for a breach of fiduciary duty under subsection (b) by another fiduciary only if—

(i)

the fiduciary participates knowingly in, or knowingly undertakes to conceal, an act or omission of such other fiduciary, knowing such act or omission is such a breach;

(ii)

by the fiduciary’s failure to comply with subsection (b) in the administration of the fiduciary’s specific responsibilities which give rise to the fiduciary status, the fiduciary has enabled such other fiduciary to commit such a breach; or

(iii)

the fiduciary has knowledge of a breach by such other fiduciary, unless the fiduciary makes reasonable efforts under the circumstances to remedy the breach.

(E)The Secretary of Labor shall prescribe, in regulations, procedures for allocating fiduciary responsibilities among fiduciaries, including investment managers. Any fiduciary who, pursuant to such procedures, allocates to a person or persons any fiduciary responsibility shall not be liable for an act or omission of such person or persons unless—

(i)

such fiduciary violated subsection (b) with respect to the allocation, with respect to the implementation of the procedures prescribed by the Secretary of Labor (or the Board under section 114 of the Federal Employees’ Retirement System Technical Corrections Act of 1986), or in continuing such allocation; or

(ii)

such fiduciary would otherwise be liable in accordance with subparagraph (D).

(2)

No civil action may be maintained against any fiduciary with respect to the responsibilities, liabilities, and penalties authorized or provided for in this section except in accordance with paragraphs (3) and (4).

(3)A civil action may be brought in the district courts of the United States—

(A)by the Secretary of Labor against any fiduciary other than a Member of the Board or the Executive Director of the Board—

(i)

to determine and enforce a liability under paragraph (1)(A);

(ii)

to collect any civil penalty under paragraph (1)(B);

(iii)

to enjoin any act or practice which violates any provision of subsection (b) or (c);

(iv)

to obtain any other appropriate equitable relief to redress a violation of any such provision; or

(v)

to enjoin any act or practice which violates subsection (g)(2) or (h) of section 8472 of this title;

(B)by any participant, beneficiary, or fiduciary against any fiduciary—

(i)

to enjoin any act or practice which violates any provision of subsection (b) or (c);

(ii)

to obtain any other appropriate equitable relief to redress a violation of any such provision;

(iii)

to enjoin any act or practice which violates subsection (g)(2) or (h) of section 8472 of this title; or

(C)by any participant or beneficiary—

(i)

to recover benefits of such participant or beneficiary under the provisions of subchapter III of this chapter, to enforce any right of such participant or beneficiary under such provisions, or to clarify any such right to future benefits under such provisions; or

(ii)

to enforce any claim otherwise cognizable under sections 1346(b) and 2671 through 2680 of title 28, provided that the remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for injury or loss of property caused by the negligent or wrongful act or omission of any fiduciary while acting within the scope of his duties or employment shall be exclusive of any other civil action or proceeding by the participant or beneficiary for recovery of money by reason of the same subject matter against the fiduciary (or the estate of such fiduciary) whose act or omission gave rise to such action or proceeding, whether or not such action or proceeding is based on an alleged violation of subsection (b) or (c).

(4)

(A)

In all civil actions under paragraph (3)(A), attorneys appointed by the Secretary may represent the Secretary (except as provided in section 518(a) of title 28), however all such litigation shall be subject to the direction and control of the Attorney General.

(B)

The Attorney General shall defend any civil action or proceeding brought in any court against any fiduciary referred to in paragraph (3)(C)(ii) (or the estate of such fiduciary) for any such injury. Any fiduciaryagainst whom such a civil action or proceeding is brought shall deliver, within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon such fiduciary (or an attested copy thereof) to the Executive Director of theBoard, who shall promptly furnish copies of the pleading and process to the Attorney General and the United States Attorney for the district wherein the action or proceeding is brought.

(C)Upon certification by the Attorney General that a fiduciary described in paragraph (3)(C)(ii) was acting in the scope of such fiduciary’s duties or employment as a fiduciary at the time of the occurrence or omission out of which the action arose, any such civil action or proceeding commenced in a State court shall be—

(i)

removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division in which it is pending; and

(ii)

deemed a tort action brought against the United States under the provisions of title 28 and all references thereto.

(D)

The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28, and with the same effect. To the extent section 2672 of title 28provides that persons other than the Attorney General or his designee may compromise and settle claims, and that payment of such claims may be made from agency appropriations, such provisions shall not apply to claims based upon an alleged violation of subsection (b) or (c).

(E)

For the purposes of paragraph (3)(C)(ii) the provisions of sections 2680(h) of title 28 shall not apply to any claim based upon an alleged violation of subsection (b) or (c).

(F)

Notwithstanding sections 1346(b) and 2671 through 2680 of title 28, whenever an award, compromise, or settlement is made under such sections upon any claim based upon an alleged violation of subsection (b) or (c), payment of such award, compromise, or settlement shall be made to the appropriate account within the Thrift Savings Fund, or where there is no such appropriate account, to the participant orbeneficiary bringing the claim.

(G)

For purposes of paragraph (3)(C)(ii), fiduciary includes only theMembers of the Board and the Board’s Executive Director.

(5)

Any relief awarded against a Member of the Board or the Executive Director of the Board in a civil action authorized by paragraph (3) may not include any monetary damages or any other recovery of money.

(6)An action may not be commenced under paragraph (3)(A) or (B) with respect to a fiduciary’s breach of any responsibility, duty, or obligation under subsection (b) or a violation of subsection (c) after the earlier of—

(A)

6 years after (i) the date of the last action which constituted a part of the breach or violation, or (ii) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation; or

(B)

3 years after the earliest date on which the plaintiff had actual knowledge of the breach or violation, except that, in the case of fraud or concealment, such action may be commenced not later than 6 years after the date of discovery of such breach or violation.

(7)

(A)

The district courts of the United States shall have exclusive jurisdiction of civil actions under this subsection.

(B)

An action under this subsection may be brought in the District Courtof the United States for the District of Columbia or a district court of the United States in the district where the breach alleged in the complaint or petition filed in the action took place or in the district where a defendant resides or may be found. Process may be served in any other district where a defendant resides or may be found.

(8)

(A)

A copy of the complaint or petition filed in any action brought under this subsection (other than by the Secretary of Labor) shall be served on the Executive Director, the Secretary of Labor, and the Secretary of the Treasury by certified mail.

(B)

Any officer referred to in subparagraph (A) of this paragraph shall have the right in his discretion to intervene in any action. If the Secretary of Labor brings an action under paragraph (2) of this subsection on behalf of a participant or beneficiary, he shall notify the Executive Director and the Secretary of the Treasury.

(f)

The Secretary of Labor may prescribe regulations to carry out this section.

(g)

(1)

The Secretary of Labor shall establish a program to carry out audits to determine the level of compliance with the requirements of this section relating to fiduciary responsibilities and prohibited activities of fiduciaries.

(2)

An audit under this subsection may be conducted by the Secretary of Labor, by contract with a qualified non-governmental organization, or in cooperation with the Comptroller General of the United States, as the Secretary considers appropriate.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 582; amended Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99–556, title I, §§ 112, 114(b), Oct. 27, 1986, 100 Stat. 3133; Pub. L. 100–238, title I, § 133(a), (c), Jan. 8, 1988, 101 Stat. 1760, 1762; Pub. L. 100–366, § 3(a), July 13, 1988, 102 Stat. 826; Pub. L. 101–335, § 8, July 17, 1990, 104 Stat. 325; Pub. L. 111–31, div. B, title I, § 106(b), June 22, 2009, 123 Stat. 1855; Pub. L. 113–255, § 3, Dec. 18, 2014, 128 Stat. 2921.)

5 - 4 - 7 - 3 - 7 - 8 Bonding

(a)

(1)

Except as provided in paragraph (2), each fiduciary and each person who handles funds or property of the Thrift Savings Fund shall be bonded as provided in this section.

(2)

(A)Bond shall not be required of a fiduciary (or of any officer or employee of such fiduciary) if such fiduciary—

(i)

is a corporation organized and doing business under the laws of the United States or of any State;

(ii)

is authorized under such laws to exercise trust powers or to conduct an insurance business;

(iii)

is subject to supervision or examination by Federal or State authority; and

(iv)

has at all times a combined capital and surplus in excess of such minimum amount (not less than $1,000,000) as the Secretary of Labor prescribes in regulations.

(B)If—

(i)

a bank or other financial institution would, but for this subparagraph, not be required to be bonded under this section by reason of the application of the exception provided in subparagraph (A),

(ii)

the bank or financial institution is authorized to exercise trust powers, and

(iii)

the deposits of the bank or financial institution are not insured by the Federal Deposit Insurance Corporation,

such exception shall apply to such bank or financial institution only if the bank or institution meets bonding requirements under State law which the Secretary of Labor determines are at least equivalent to those imposed on banks by Federal law.

(b)

(1)

The Secretary of Labor shall prescribe the amount of a bond under this section at the beginning of each fiscal year. Except as otherwise provided in this paragraph, such amount shall not be less than 10 percent of the amount of funds handled. In no case shall such bond be less than $1,000 nor more than $500,000, except that the Secretary of Labor, after due notice and opportunity for hearing to all interested parties, and other consideration of the record, may prescribe an amount in excess of $500,000.

(2)

For the purpose of prescribing the amount of a bond under paragraph (1), the amount of funds handled shall be determined by reference to the amount of the funds handled by the person, group, or class to be covered by such bond or by their predecessor or predecessors, if any, during the preceding fiscal year, or to the amount of funds to be handled during the current fiscal year by such person, group, or class, estimated as provided in regulations prescribed by the Secretary of Labor.

(c)A bond required by subsection (a)—

(1)

shall include such terms and conditions as the Secretary of Labor considers necessary to protect the Thrift Savings Fund against loss by reason of acts of fraud or dishonesty on the part of the bonded person directly or through connivance with others;

(2)

shall have as surety thereon a corporate surety company which is an acceptable surety on Federal bonds under authority granted by the Secretary of the Treasury pursuant to sections 9304 through 9308 of title 31; and

(3)

shall be in a form or of a type approved by the Secretary of Labor, including individual bonds or schedule or blanket forms of bonds which cover a group or class.

(d)

(1)

It shall be unlawful for any person to whom subsection (a) applies, to receive, handle, disburse, or otherwise exercise custody or control of any of the funds or other property of the Thrift Savings Fund without being bonded as required by this section.

(2)

It shall be unlawful for any fiduciary, or any other person having authority to direct the performance of functions described in paragraph (1), to permit any such function to be performed by any person to whom subsection (a) applies unless such person has met the requirements of such subsection.

(e)

Notwithstanding any other provision of law, any person who is required to be bonded as provided in subsection (a) shall be exempt from any other provision of law which would, but for this subsection, require such person to be bonded for the handling of the funds or other property of the Thrift Savings Fund.

(f)

The Secretary of Labor shall prescribe such regulations as may be necessary to carry out the provisions of this section, including exempting a person or class of persons from the requirements of this section.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 586; amended Pub. L. 99–556, title I, §§ 108, 115, Oct. 27, 1986, 100 Stat. 3132, 3134; Pub. L. 102–378, § 2(72), Oct. 2, 1992, 106 Stat. 1355.)

5 - 4 - 7 - 3 - 7 - 9 Investigative authority

Any authority available to the Secretary of Labor under section 504 of the Employee Retirement Income Security Act of 1974 is hereby made available to the Secretary of Labor, and any officer designated by the Secretary of Labor, to determine whether any person has violated, or is about to violate, any provision of section 8477 or 8478.

(Added Pub. L. 99–556, title I, § 110(a), Oct. 27, 1986, 100 Stat. 3132.)

5 - 4 - 7 - 3 - 7 - 10 Exculpatory provisions; insurance

(a)

Any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or liability for any responsibility, obligation, or duty under this subchapter shall be void.

(b)

(1)

The Executive Director may require employing agencies to contribute an amount not to exceed 1 percent of the amount such agencies are required to contribute in accordance with section 8432(c) of this title to the Thrift Savings Fund.

(2)

The sums credited to the Thrift Savings Fund under paragraph (1) shall be available and may be used at the discretion of the Executive Director to purchase insurance to cover potential liability of persons who serve in a fiduciary capacity with respect to the Thrift Savings Fund, without regard to whether a policy of insurance permits recourse by the insurer against the fiduciary in the case of a breach of a fiduciary obligation.

(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 588.)

5 - 4 - 7 - 3 - 7 - 11 Subpoena authority

(a)

In order to carry out the responsibilities specified in this subchapter and subchapter III of this chapter, the Executive Director may issue subpoenas commanding each person to whom the subpoena is directed to produce designated books, documents, records, electronically stored information, or tangible materials in the possession or control of that individual.

(b)

Notwithstanding any Federal, State, or local law, any person, including officers, agents, and employees, receiving a subpoena under this section, who complies in good faith with the subpoena and thus produces the materials sought, shall not be liable in any court of any State or the United States to any individual, domestic or foreign corporation or upon a partnership or other unincorporated association for such production.

(c)

When a person fails to obey a subpoena issued under this section, the districtcourt of the United States for the district in which the investigation is conducted or in which the person failing to obey is found, shall on proper application issue an order directing that person to comply with the subpoena. The court may punish as contempt any disobedience of its order.

(d)

The Executive Director shall prescribe regulations to carry out subsection (a).

(Added Pub. L. 111–31, div. B, title I, § 107(a), June 22, 2009, 123 Stat. 1856.)

5 - 4 - 7 - 4 UNEMPLOYMENT COMPENSATION (§§ 8501 to 8525)

5 - 4 - 7 - 4 - 1 EMPLOYEES GENERALLY (§§ 8501 to 8509)

5 - 4 - 7 - 4 - 1 - 1 Definitions

For the purpose of this subchapter—

(1)“Federal service” means service performed after 1952 in the employ of the United States or an instrumentality of the United States which is wholly or partially owned by the United States, but does not include service (except service to which subchapter II of this chapter applies) performed—

(A)

by an elective official in the executive or legislative branch;

(B)

as a member of the armed forces or the Commissioned Corps of the National Oceanic and Atmospheric Administration;

(C)

by members of the Foreign Service for whom payments are provided under section 609(b)(1) of the Foreign Service Act of 1980;

(D)

outside the United States, the Commonwealth of Puerto Rico, and the Virgin Islands by an individual who is not a citizen of the United States;

(E)

by an individual excluded by regulations of the Office of Personnel Management from the operation of subchapter III of chapter 83 of this titlebecause he is paid on a contract or fee basis;

(F)

by an individual receiving nominal pay and allowances of $12 or less a year;

(G)

in a hospital, home, or other institution of the United States by a patient or inmate thereof;

(H)

by a student-employee as defined by section 5351 of this title;

(I)

by an individual serving on a temporary basis in case of fire, storm, earthquake, flood, or other similar emergency;

(J)

by an individual employed under a Federal relief program to relieve him from unemployment;

(K)

as a member of a State, county, or community committee under the Agricultural Stabilization and Conservation Service or of any other board, council, committee, or other similar body, unless the board, council, committee, or other body is composed exclusively of individuals otherwise in the full-time employ of the United States; or

(L)by an officer or a member of the crew on or in connection with an American vessel—

(i)

owned by or bareboat chartered to the United States; and

(ii)

whose business is conducted by a general agent of the Secretary of Commerce;

if contributions on account of the service are required to be made to an unemployment fund under a State unemployment compensation law under section 3305(g) of title 26;

(2)

“Federal wages” means all pay and allowances, in cash and in kind, for Federal service;

(3)

“Federal employee” means an individual who has performed Federal service;

(4)

“compensation” means cash benefits payable to an individual with respect to his unemployment including any portion thereof payable with respect to dependents;

(5)

“benefit year” means the benefit year as defined by the applicable State unemployment compensation law, and if not so defined the term means the period prescribed in the agreement under this subchapter with a State or, in the absence of such an agreement, the period prescribed by the Secretary of Labor;

(6)

“State” means the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands;

(7)

“United States”, when used in a geographical sense, means the States; and

(8)

“base period” means the base period as defined by the applicable State unemployment compensation law for the benefit year.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 585; Pub. L. 94–566, title I, § 116(e)(1), title II, § 214(b), Oct. 20, 1976, 90 Stat. 2672, 2678; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–215, § 4(a), Mar. 25, 1980, 94 Stat. 124; Pub. L. 96–465, title II, § 2314(h), Oct. 17, 1980, 94 Stat. 2168.)

5 - 4 - 7 - 4 - 1 - 2 Compensation under State agreement

(a)The Secretary of Labor, on behalf of the United States, may enter into an agreement with a State, or with an agency administering the unemployment compensation law of a State, under which the State agency shall—

(1)

pay, as agent of the United States, compensation under this subchapter to Federal employees; and

(2)

otherwise cooperate with the Secretary and with other State agencies in paying compensation under this subchapter.

(b)

The agreement shall provide that compensation will be paid by the State to a Federal employee in the same amount, on the same terms, and subject to the same conditions as the compensation which would be payable to him under the unemployment compensation law of the State if his Federal service and Federal wages assigned under section 8504 of this title to the State had been included as employment and wages under that State law.

[(c)

Repealed. Pub. L. 90–83, § 1(86)(B), Sept. 11, 1967, 81 Stat. 218.]

(d)

A determination by a State agency with respect to entitlement to compensation under an agreement is subject to review in the same manner and to the same extent as determinations under the State unemployment compensation law, and only in that manner and to that extent.

(e)

Each agreement shall provide the terms and conditions on which it may be amended or terminated.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 586; Pub. L. 90–83, § 1(86), Sept. 11, 1967, 81 Stat. 218.)

5 - 4 - 7 - 4 - 1 - 3 Compensation absent State agreement

(a)

In the case of a Federal employee whose Federal service and Federal wages are assigned under section 8504 of this title to a State which does not have an agreement with the Secretary of Labor, the Secretary, under regulations prescribed by him, shall, on the filing by the Federal employee of a claim forcompensation under this subsection, pay compensation to him in the same amount, on the same terms, and subject to the same conditions as would be paid to him under the unemployment compensation law of the State if hisFederal service and Federal wages had been included as employment and wages under that State law. However, if the Federal employee, without regard to hisFederal service and Federal wages, has employment or wages sufficient to qualify for compensation during the benefit year under that State law, then payments of compensation under this subsection may be made only on the basis of his Federal service and Federal wages.

(b)

A Federal employee whose claim for compensation under subsection (a) of this section is denied is entitled to a fair hearing under regulations prescribed by the Secretary. A final determination by the Secretary with respect to entitlement to compensation under this section is subject to review by the courts in the same manner and to the same extent as is provided by section 405(g) of title 42.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 587; Pub. L. 90–83, § 1(87), Sept. 11, 1967, 81 Stat. 218; Pub. L. 94–566, title I, § 116(e)(2), Oct. 20, 1976, 90 Stat. 2673.)

5 - 4 - 7 - 4 - 1 - 4 Assignment of Federal service and wages

Under regulations prescribed by the Secretary of Labor, the Federal service andFederal wages of a Federal employee shall be assigned to the State in which he had his last official station in Federal service before the filing of his first claim for compensation for the benefit year. However—

(1)

if, at the time of filing his first claim, he resides in another State in which he performed, after the termination of his Federal service, service covered under the unemployment compensation law of the other State, his Federal service andFederal wages shall be assigned to the other State; and

(2)

if his last official station in Federal service, before filing his first claim, was outside the United States, his Federal service and Federal wages shall be assigned to the State where he resides at the time he files his first claim.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 588; Pub. L. 90–83, § 1(88), Sept. 11, 1967, 81 Stat. 218; Pub. L. 94–566, title I, § 116(e)(3), Oct. 20, 1976, 90 Stat. 2673.)

5 - 4 - 7 - 4 - 1 - 5 Payments to States

(a)

Each State is entitled to be paid by the United States with respect to each individual whose base period wages included Federal wages an amount which shall bear the same ratio to the total amount of compensation paid to such individual as the amount of his Federal wages in his base period bears to the total amount of his base period wages.

(b)

Each State shall be paid, either in advance or by way of reimbursement, as may be determined by the Secretary of Labor, the sum that the Secretary estimates the State is entitled to receive under this subchapter for each calendar month. The sum shall be reduced or increased by the amount which the Secretary finds that his estimate for an earlier calendar month was greater or less than the sum which should have been paid to the State. An estimate may be made on the basis of a statistical, sampling, or other method agreed on by the Secretary and the State agency.

(c)

The Secretary, from time to time, shall certify to the Secretary of the Treasury the sum payable to each State under this section. The Secretary of the Treasury, before audit or settlement by the Government Accountability Office, shall pay the State in accordance with the certification from the funds for carrying out the purposes of this subchapter.

(d)

Money paid a State under this subchapter may be used solely for the purposes for which it is paid. Money so paid which is not used for these purposes shall be returned, at the time specified by the agreement, to the Treasury of the United States and credited to current applicable appropriations, funds, or accounts from which payments to States under this subchapter may be made.

(e)An agreement may—

(1)

require each State officer or employee who certifies payments or disburses funds under the agreement, or who otherwise participates in its performance, to give a surety bond to the United States in the amount the Secretary considers necessary; and

(2)

provide for payment of the cost of the bond from funds for carrying out the purposes of this subchapter.

(f)

In the absence of gross negligence or intent to defraud the United States, an individual designated by the Secretary, or designated under an agreement, as a certifying official is not liable for the payment of compensation certified by him under this subchapter.

(g)

In the absence of gross negligence or intent to defraud the United States, a disbursing official is not liable for a payment by him under this subchapter if it was based on a voucher signed by a certifying official designated as provided by subsection (f) of this section.

(h)

For the purpose of payments made to a State under subchapter III of chapter 7 of title 42, administration by a State agency under an agreement is deemed a part of the administration of the State unemployment compensation law.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 588; Pub. L. 94–566, title II, § 214(a), Oct. 20, 1976, 90 Stat. 2678; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

5 - 4 - 7 - 4 - 1 - 6 Dissemination of information

(a)Each agency of the United States and each wholly or partially owned instrumentality of the United States shall make available to State agencies which have agreements under this subchapter, or to the Secretary of Labor, as the case may be, such information concerning the Federal service and Federal wages of a Federal employee as the Secretary considers practicable and necessary for the determination of the entitlement of the Federal employee to compensation under this subchapter. The information shall include the findings of the employing agency concerning—

(1)

whether or not the Federal employee has performed Federal service;

(2)

the periods of Federal service;

(3)

the amount of Federal wages; and

(4)

the reasons for termination of Federal service.

The employing agency shall make the findings in the form and manner prescribed by regulations of the Secretary. The regulations shall include provision for correction by the employing agency of errors and omissions. This subsection does not apply with respect to Federal service and Federal wages covered by subchapter II of this chapter.

(b)

The agency administering the unemployment compensation law of a State shall furnish the Secretary such information as he considers necessary or appropriate in carrying out this subchapter. The information is deemed the report required by the Secretary for the purpose of section 503(a)(6) of title 42.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 589; Pub. L. 94–566, title III, § 313(a), Oct. 20, 1976, 90 Stat. 2680.)

5 - 4 - 7 - 4 - 1 - 7 False statements and misrepresentations

(a)If a State agency, the Secretary of Labor, or a court of competent jurisdiction finds that an individual—

(1)

knowingly has made, or caused to be made by another, a false statement or representation of a material fact, or knowingly has failed, or caused another to fail, to disclose a material fact; and

(2)

as a result of that action has received an amount as compensation under this subchapter to which he was not entitled;

the individual shall repay the amount to the State agency or the Secretary. Instead of requiring repayment under this subsection, the State agency or the Secretary may recover the amount by deductions from compensationpayable to the individual under this subchapter during the 2-year period after the date of the finding. A finding by a State agency or the Secretary may be made only after an opportunity for a fair hearing, subject to such further review as may be appropriate under sections 8502(d) and 8503(c) of this title.

(b)An amount repaid under subsection (a) of this section shall be—

(1)

deposited in the fund from which payment was made, if the repayment was to a State agency; or

(2)

returned to the Treasury of the United States and credited to the current applicable appropriation, fund, or account from which payment was made, if the repayment was to the Secretary.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 590.)

5 - 4 - 7 - 4 - 1 - 8 Regulations

The Secretary of Labor may prescribe rules and regulations necessary to carry out this subchapter and subchapter II of this chapter. The Secretary, insofar as practicable, shall consult with representatives of the State unemployment compensation agencies before prescribing rules or regulations which may affect the performance by the State agencies of functions under agreements under this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 590.)

5 - 4 - 7 - 4 - 1 - 9 Federal Employees Compensation Account

(a)The Federal Employees Compensation Account (as established by section 909 of the Social Security Act, and hereafter in this section referred to as the “Account”) in the Unemployment Trust Fund (as established by section 904 of such Act) shall consist of—

(1)

funds appropriated to or transferred thereto, and

(2)

amounts deposited therein pursuant to subsection (c).

(b)

Moneys in the Account shall be available only for the purpose of making payments to States pursuant to agreements entered into under this chapter and making payments of compensation under this chapter in States which do not have in effect such an agreement.

(c)

(1)

Each employing agency shall deposit into the Account amounts equal to the expenditures incurred under this chapter on account of Federal serviceperformed by employees and former employees of that agency.

(2)

Deposits required by paragraph (1) shall be made during each calendar quarter and the amount of the deposit to be made by any employing agency during any quarter shall be based on a determination by the Secretary of Labor as to the amounts of payments, made prior to such quarter from the Account based on Federal service performed by employees of such agency after December 31, 1980, with respect to which deposit has not previously been made. The amount to be deposited by any employing agency during any calendar quarter shall be adjusted to take account of any overpayment or underpayment of deposit during any previous quarter for which adjustment has not already been made.

(3)

If any Federal agency does not deposit in the Federal Employees Compensation Account any amount before the date 30 days after the date on which the Secretary of Labor has notified such agency that it is required to so deposit such amount, the Secretary of Labor shall notify the Secretary of the Treasury of the failure to make such deposit and the Secretary of the Treasury shall transfer such amount to the Federal Employees Compensation Account from amounts otherwise appropriated to such Federal agency.

(d)

The Secretary of Labor shall certify to the Secretary of the Treasury the amount of the deposit which each employing agency is required to make to the Account during any calendar quarter, and the Secretary of the Treasury shall notify the Secretary of Labor as to the date and amount of any deposit made to such Account by any such agency.

(e)Prior to the beginning of each fiscal year (commencing with the fiscal year which begins October 1, 1981) the Secretary of Labor shall estimate—

(1)

the amount of expenditures which will be made from the Account during such year, and

(2)

the amount of funds which will be available during such year for the making of such expenditures,

and if, on the basis of such estimate, he determines that the amount described in paragraph (2) is in excess of the amount necessary—

(3)

to meet the expenditures described in paragraph (1), and

(4)

to provide a reasonable contingency fund so as to assure that there will, during all times in such year, be sufficient sums available in the Account to meet the expenditures described in paragraph (1),

he shall certify the amount of such excess to the Secretary of the Treasury and the Secretary of the Treasury shall transfer, from the Account to the general fund of the Treasury, an amount equal to such excess.

(f)

The Secretary of Labor is authorized to establish such rules and regulations as may be necessary or appropriate to carry out the provisions of this section.

(g)

Any funds appropriated after the establishment of the Account, for the making of payments for which expenditures are authorized to be made from moneys in the Account, shall be made to the Account; and there are hereby authorized to be appropriated to the Account, from time to time, such sums as may be necessary to assure that there will, at all times, be sufficient sums available in the Account to meet the expenditures authorized to be made from moneys therein.

(h)

For purposes of this section, the term “Federal service” includes Federal service as defined in section 8521(a).

(Added Pub. L. 96–499, title X, § 1023(b), Dec. 5, 1980, 94 Stat. 2657; amended Pub. L. 97–362, title II, § 202(a), Oct. 25, 1982, 96 Stat. 1732; Pub. L. 102–318, title V, § 532(a), July 3, 1992, 106 Stat. 317.)

5 - 4 - 7 - 4 - 2 EX-SERVICEMEN (§§ 8521 to 8525)

5 - 4 - 7 - 4 - 2 - 1 Definitions; application

(a)For the purpose of this subchapter—

(1)“Federal service” means active service (not including active duty in a reserve status unless for a continuous period of 180 days or more) in the armed forces or the Commissioned Corps of the National Oceanic and Atmospheric Administration if with respect to that service—

(A)

the individual was discharged or released under honorable conditions (and, if an officer, did not resign for the good of the service); and

(B)

(i)

the individual was discharged or released after completing his first full term of active service which the individual initially agreed to serve, or

(ii)the individual was discharged or released before completing such term of active service—

(I)

for the convenience of the Government under an early release program,

(II)

because of medical disqualification, pregnancy, parenthood, or any service-incurred injury or disability,

(III)

because of hardship (including pursuant to a sole survivorship discharge, as that term is defined in section 1174(i) of title 10), or

(IV)

because of personality disorders or inaptitude but only if the service was continuous for 365 days or more;

(2)

“Federal wages” means all pay and allowances, in cash and in kind, for Federal service, computed on the basis of the pay and allowances for the pay grade of the individual at the time of his latest discharge or release from Federal service as specified in the schedule applicable at the time he files his first claim for compensation for the benefit year. The Secretary of Labor shall issue, from time to time, after consultation with the Secretary of Defense, schedules specifying the pay and allowances for each pay grade of servicemen covered by this subchapter, which reflect representative amounts for appropriate elements of the pay and allowances whether in cash or in kind; and

(3)

“State” means the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.

(b)

The provisions of subchapter I of this chapter, subject to the modifications made by this subchapter, apply to individuals who have had Federal service as defined by subsection (a) of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 590; Pub. L. 90–83, § 1(89), Sept. 11, 1967, 81 Stat. 218; Pub. L. 94–566, title I, § 116(e)(4), Oct. 20, 1976, 90 Stat. 2673; Pub. L. 96–215, § 4(b), Mar. 25, 1980, 94 Stat. 124; Pub. L. 96–364, title IV, § 415(a), Sept. 26, 1980, 94 Stat. 1310; Pub. L. 97–35, title XXIV, § 2405(a), Aug. 13, 1981, 95 Stat. 876; Pub. L. 97–362, title II, § 201(a), (b), Oct. 25, 1982, 96 Stat. 1732; Pub. L. 102–164, title III, § 301(a), (b), Nov. 15, 1991, 105 Stat. 1059; Pub. L. 110–317, § 7, Aug. 29, 2008, 122 Stat. 3529; Pub. L. 114–92, div. A, title V, § 513(a), Nov. 25, 2015, 129 Stat. 809.)

5 - 4 - 7 - 4 - 2 - 2 Assignment of Federal service and wages

Notwithstanding section 8504 of this title, Federal service and Federal wages not previously assigned shall be assigned to the State in which the claimant first files claim for unemployment compensation after his latest discharge or release fromFederal service. This assignment is deemed an assignment under section 8504 of this title for the purpose of this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 591; Pub. L. 94–566, title I, § 116(e)(5), Oct. 20, 1976, 90 Stat. 2673.)

5 - 4 - 7 - 4 - 2 - 3 Dissemination of information

(a)

When designated by the Secretary of Labor, an agency of the United Statesshall make available to the appropriate State agency or to the Secretary, as the case may be, such information, including findings in the form and manner prescribed by regulations of the Secretary, as the Secretary considers practicable and necessary for the determination of the entitlement of an individual to compensation under this subchapter.

(b)Subject to correction of errors and omissions as prescribed by regulations of the Secretary, the following are final and conclusive for the purpose of sections 8502(d) and 8503(c) of this title:

(1)Findings by an agency of the United States made in accordance with subsection (a) of this section with respect to—

(A)

whether or not an individual has met any condition specified by section 8521(a)(1) of this title;

(B)

the periods of Federal service; and

(C)

the pay grade of the individual at the time of his latest discharge or release from Federal service.

(2)

The schedules of pay and allowances prescribed by the Secretary under section 8521(a)(2) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 591.)

5 - 4 - 7 - 4 - 2 - 4 Effect on other statutes

(a)Subsection (b)(2) does not apply to an individual who—

(1)

is otherwise entitled to compensation under this subchapter;

(2)

is described in section 3311(b) of title 38;

(3)

is not receiving retired pay under title 10; and

(4)

was discharged or released from service in the Armed Forces or the Commissioned Corps of the National Oceanic and Atmospheric Administration (including through a reduction in force) under honorable conditions, but did not voluntarily separate from such service.

(b)An individual is not entitled to compensation under this subchapter for any period with respect to which the individual receives—

(1)

a subsistence allowance under chapter 31 of title 38 or under part VIII of Veterans Regulation Numbered 1(a);

(2)

except in the case of an individual described in subsection (a), an educational assistance allowance under chapter 33 of title 38; or

(3)

an educational assistance allowance under chapter 35 of title 38.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 591; Pub. L. 90–83, § 1(90), Sept. 11, 1967, 81 Stat. 219; Pub. L. 114–92, div. A, title V, § 560, Nov. 25, 2015, 129 Stat. 828.)

Repealed Aug. 10, 1970,

5 - 4 - 7 - 5 LIFE INSURANCE (§§ 8701 to 8716)

5 - 4 - 7 - 5 - 1 Definitions

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(a)For the purpose of this chapter, “employee” means—

(1)

an employee as defined by section 2105 of this title;

(2)

a Member of Congress as defined by section 2106 of this title;

(3)

a Congressional employee as defined by section 2107 of this title;

(4)

the President;

(5)

a justice or judge of the United States appointed to hold office during good behavior (i) who is in regular active judicial service, or (ii) who is retired from regular active service under section 371(b) or 372(a) of title 28, United States Code, or (iii) who has resigned the judicial office under section 371(a) of title 28 with the continued right during the remainder of his lifetime to receive the salary of the office at the time of his resignation;

(6)

an individual first employed by the government of the District of Columbia before October 1, 1987;

(7)

an individual employed by Gallaudet College; [1]

(8)

an individual employed by a county committee established under section 590h(b) of title 16;

(9)

an individual appointed to a position on the office staff of a former President under section 1(b) of the Act of August 25, 1958 (72 Stat. 838); and

(10)

but does not include—

(A)

an employee of a corporation supervised by the Farm Credit Administration if private interests elect or appoint a member of the board of directors;

(B)

an individual who is not a citizen or national of the United States and whose permanent duty station is outside the United States, unless the individual was an employee for the purpose of this chapter on September 30, 1979, by reason of service in an Executive agency, the United States Postal Service, or the Smithsonian Institution in the area which was then known as the Canal Zone; or

(C)

an employee excluded by regulation of the Office of Personnel Management under section 8716(b) of this title.

(b)

Notwithstanding subsection (a) of this section, the employment of a teacherin the recess period between two school years in a position other than a teaching position in which he served immediately before the recess period does not qualify the individual as an employee for the purpose of this chapter. For the purpose of this subsection, “teacher” and “teaching position” have the meanings given them by section 901 of title 20.

(c)For the purpose of this chapter, “basic insurance amount” means, in the case of any employee under this chapter, an amount equal to the greater of—

(1)

the annual rate of basic pay payable to the employee, rounded to the next higher multiple of $1,000, plus $2,000, or

(2)

$10,000.

In the case of any former employee entitled to coverage under this chapter, the term means the basic insurance amount applicable for the employee at the time the insurance to which the employee is entitled as an employee under this chapter stops pursuant to section 8706(a) of this title.

(d)

(1)For the purpose of this chapter, “family member”, when used with respect to any individual, means—

(A)

the spouse of the individual; and

(B)an unmarried dependent child of the individual (other than a stillborn child), including an adopted child, stepchild or foster child (but only if the stepchild or foster child lived with the individual in a regular parent-child relationship), or recognized natural child—

(i)

who is less than 22 years of age, or

(ii)

who is 22 years of age or older and is incapable of self-support because of a mental or physical disability which existed before the child became 22 years of age.

(2)

For the purpose of this subsection, “dependent”, in the case of any child, means that the individual involved was, at the time of the child’s death, either living with or contributing to the support of the child, as determined in accordance with the regulations the Office shall prescribe.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 592; Pub. L. 91–418, § 3(a), Sept. 25, 1970, 84 Stat. 869; Pub. L. 93–160, § 1(a), Nov. 27, 1973, 87 Stat. 635; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(51), Aug. 14, 1979, 93 Stat. 384; Pub. L. 96–70, title I, § 1209(b), Sept. 27, 1979, 93 Stat. 463; Pub. L. 96–427, §§ 2(a), 8(b), Oct. 10, 1980, 94 Stat. 1831, 1837; Pub. L. 98–353, title II, § 205, July 10, 1984, 98 Stat. 350; Pub. L. 99–335, title II, § 207(k)(1), June 6, 1986, 100 Stat. 597; Pub. L. 100–679, § 13(b), Nov. 17, 1988, 102 Stat. 4071; Pub. L. 105–311, §§ 3(1), 4, Oct. 30, 1998, 112 Stat. 2950; Pub. L. 114–136, § 2(c)(4), Mar. 18, 2016, 130 Stat. 305.)

5 - 4 - 7 - 5 - 2 Automatic coverage

(a)

An employee is automatically insured on the date he becomes eligible for insurance and each policy of insurance purchased by the Office of Personnel Management under this chapter shall provide for that automatic coverage.

(b)

An employee desiring not to be insured shall give written notice to his employing office on a form prescribed by the Office. If the notice is received before he has become insured, he shall not be insured. If the notice is received after he has become insured, his insurance stops at the end of the pay period in which the notice is received.

(c)

Notwithstanding a notice previously given under subsection (b), an employeewho is deployed in support of a contingency operation (as that term is defined in section 101(a)(13) of title 10) or an employee of the Department of Defense who is designated as an emergency essential employee under section 1580 of title 10shall be insured if the employee, within 60 days after the date of notification of deployment or designation, elects to be insured under a policy of insurance under this chapter. An election under the preceding sentence shall be effective when provided to the Office in writing, in the form prescribed by the Office, within such 60-day period.

(d)

Any services by an officer or employee under this chapter relating to benefits under this chapter shall be deemed, for purposes of section 1342 of title 31, services for emergencies involving the safety of human life or the protection of property.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 593; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 106–398, § 1 [[div. A], title XI, § 1134(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–318; Pub. L. 110–417, [div. A], title XI, § 1103(a), Oct. 14, 2008, 122 Stat. 4616; Pub. L. 116–92, div. A, title XI, § 1110(b), Dec. 20, 2019, 133 Stat. 1600.)

5 - 4 - 7 - 5 - 3 Benefit certificate

The Office of Personnel Management shall arrange to have each insured employee receive a certificate setting forth the benefits to which he is entitled, to whom the benefits are payable, to whom the claims shall be submitted, and summarizing the provisions of the policy principally affecting him. The certificate is issued instead of the certificate which the insurance company would otherwise be required to issue.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 593; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 7 - 5 - 4 Group insurance; amounts

(a)An employee eligible for insurance is entitled to be insured for an amount of group life insurance equal to—

(1)

the employee’s basic insurance amount, multiplied by

(2)

the appropriate factor determined on the basis of the employee’s age in accordance with the following schedule:

If the age of the employee is	The appropriate factor is:
35 or under	2.0
36	1.9
37	1.8
38	1.7
39	1.6
40	1.5
41	1.4
42	1.3
43	1.2
44	1.1
45 or over	1.0.

(b)

An employee eligible for insurance is entitled to be insured for group accidental death and dismemberment insurance in accordance with this subsection. Subject to the conditions and limitations approved by the Office of Personnel Management which are contained in the policy purchased by the Office, the group accidental death and dismemberment insurance provides payment as follows:

Loss	Amount payable
For loss of life	Full amount of the employee’s basic insurance amount.
Loss of one hand or of one foot or loss of sight of one eye	One-half the amount of the employee’s basic insurance amount.
Loss of two or more such members	Full amount of the employee’s basic insurance amount.

For any one accident the aggregate amount of group accidental death and dismemberment insurance that may be paid may not exceed an amount equal to the employee’s basic insurance amount.

(c)The Office shall prescribe regulations providing for the conversion of other than annual rates of pay to annual rates of pay and shall specify the types of pay included in annual pay. For the purpose of this chapter, “annual pay” includes—

(1)

premium pay under section 5545(c)(1) of this title; and

(2)

with respect to a law enforcement officer as defined in section 8331(20)or 8401(17) of this title, premium pay under section 5545(c)(2) of this title.

(d)In determining the amount of insurance to which an employee is entitled—

(1)

a change in rate of pay under subchapter VI of chapter 53 of this title is deemed effective as of the first day of the pay period after the pay period in which the payroll change is approved; and

(2)

a change in rate of pay under section 5344 or 5349 of this title is deemed effective as of the date of issuance of the order granting the increase or the effective date of the increase, whichever is later, except, that in the case of an employee who dies or retires during the period beginning on the effective date of the increase and ending on the date of the issuance of the order granting the increase, a change in rate of pay under either of such sections shall be deemed as having been in effect for such employee during that period.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 593; Pub. L. 89–737, § 1(3), Nov. 2, 1966, 80 Stat. 1164; Pub. L. 90–206, title IV, § 401, Dec. 16, 1967, 81 Stat. 646; Pub. L. 92–392, § 11, Aug. 19, 1972, 86 Stat. 575; Pub. L. 95–454, title VIII, § 801(a)(3)(E), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1222, 1224; Pub. L. 96–427, § 2(b)–(d), Oct. 10, 1980, 94 Stat. 1831, 1832; Pub. L. 100–238, title I, § 103(b), Jan. 8, 1988, 101 Stat. 1744.)

5 - 4 - 7 - 5 - 5 Death claims; order of precedence; escheat

(a)

Except as provided in subsection (e), the amount of group life insurance and group accidental death insurance in force on an employee at the date of his death shall be paid, on the establishment of a valid claim, to the person or persons surviving at the date of his death, in the following order of precedence:

First, to the beneficiary or beneficiaries designated by the employee in a signed and witnessed writing received before death in the employing office or, if insured because of receipt of annuity or of benefits under subchapter I of chapter 81 of this title as provided by section 8706(b) of this title, in the Office of Personnel Management. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.

Second, if there is no designated beneficiary, to the widow or widower of the employee.

Third, if none of the above, to the child or children of the employee and descendants of deceased children by representation.

Fourth, if none of the above, to the parents of the employee or the survivor of them.

Fifth, if none of the above, to the duly appointed executor or administrator of the estate of the employee.

Sixth, if none of the above, to other next of kin of the employee entitled under the laws of the domicile of the employee at the date of his death.

(b)

If, within 1 year after the death of the employee, no claim for payment has been filed by a person entitled under the order of precedence named by subsection (a) of this section, or if payment to the person within that period is prohibited by Federal statute or regulation, payment may be made in the order of precedence as if the person had predeceased the employee, and the payment bars recovery by any other person.

(c)

If, within 2 years after the death of the employee, no claim for payment has been filed by a person entitled under the order of precedence named by subsection (a) of this section, and neither the Office nor the administrative office established by the company concerned pursuant to section 8709(b) of this titlehas received notice that such a claim will be made, payment may be made to the claimant who in the judgment of the Office is equitably entitled thereto, and the payment bars recovery by any other person.

(d)

If, within 4 years after the death of the employee, payment has not been made under this section and no claim for payment by a person entitled under this section is pending, the amount payable escheats to the credit of the Employees’ Life Insurance Fund.

(e)

(1)

Any amount which would otherwise be paid to a person determined under the order of precedence named by subsection (a) shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.

(2)

For purposes of this subsection, a decree, order, or agreement referred to in paragraph (1) shall not be effective unless it is received, before the date of the covered employee’s death, by the employing agency or, if the employee has separated from service, by the Office.

(3)A designation under this subsection with respect to any person may not be changed except—

(A)

with the written consent of such person, if received as described in paragraph (2); or

(B)

by modification of the decree, order, or agreement, as the case may be, if received as described in paragraph (2).

(4)

The Office shall prescribe any regulations necessary to carry out this subsection, including regulations for the application of this subsection in the event that two or more decrees, orders, or agreements, are received with respect to the same amount.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 594; Pub. L. 90–83, § 1(91), Sept. 11, 1967, 81 Stat. 219; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–583, § 1(b), Nov. 2, 1978, 92 Stat. 2481; Pub. L. 105–205, § 1, July 22, 1998, 112 Stat. 683.)

5 - 4 - 7 - 5 - 6 Termination of insurance; assignment of ownership

(a)

A policy purchased under this chapter shall contain a provision, approved by the Office of Personnel Management, to the effect that insurance on anemployee stops on his separation from the service or 12 months after discontinuance of his pay, whichever is earlier, subject to a provision for temporary extension of life insurance coverage and for conversion to an individual policy of life insurance under conditions approved by the Office. Justices and judges of the United States described in section 8701(a)(5)(ii) and (iii) of this chapter are deemed to continue in active employment for purposes of this chapter.

(b)

(1)In the case of any employee who retires on an immediate annuity and has been insured under this chapter throughout—

(A)

the 5 years of service immediately preceding the date of the employee’s retirement, or

(B)

the full period or periods of service during which the employee was entitled to be insured, if fewer than 5 years,

life insurance, without accidental death and dismemberment insurance, may be continued, under conditions determined by the Office.

(2)In the case of any employee who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee and has been insured under this chapter throughout—

(A)

the 5 years of service immediately preceding the date the employeebecomes entitled to compensation, or

(B)

the full period or periods of service during which the employee was entitled to be insured, if fewer than 5 years,

life insurance, without accidental death and dismemberment insurance, may be continued, under conditions determined by the Office, during the period the employee is receiving compensation and is held by the Secretary of Labor or the Secretary’s delegate to be unable to return to duty.

(3)The amount of life insurance continued under paragraph (1) or (2) of this subsection shall be continued, with or without reduction, at the end of each full calendar month after the date the employee becomes 65 years of age and is retired or is receiving compensation for disease or injury, in accordance with the employee’s written election at the time eligibility to continue insurance during retirement or receipt of compensation arises, as follows:

(A)

the employee may elect to have the deductions required by section 8707 of this title withheld from annuity or compensation, and theemployee’s life insurance shall be reduced each month by 2 percent of the face value until 25 percent of the amount of life insurance in force before the first reduction remains; or

(B)

in addition to any deductions which would be required if the insurance were continued as provided under subparagraph (A) of this paragraph, the employee may elect continuous withholdings from annuity or compensation in amounts determined by the Office, and the employee’s life insurance coverage shall be either continued without reduction or reduced each month by no more than 1 percent of its face value until no less than 50 percent of the amount of insurance in force before the first reduction remains.

(4)

If an employee elects to continue insurance under subparagraph (B) of paragraph (3) of this subsection at the time eligibility to continue insurance during retirement or receipt of compensation for disease or injury arises, the individual may later cancel that election and life insurance coverage shall continue as if the individual had originally elected coverage under subparagraph (A) of paragraph (3) of this subsection.

(c)

Notwithstanding subsections (a) and (b) of this section, an employee who enters on approved leave without pay to serve as a full-time officer or employeeof an organization composed primarily of employees as defined by section 8701(a) of this title, within 60 days after entering on that leave without pay, may elect to continue his insurance and arrange to pay currently into the Employees’Life Insurance Fund, through his employing agency, both employee and agency contributions from the beginning of leave without pay. The employing agency shall forward the premium payments to the Fund. If the employee does not so elect, his insurance will continue during nonpay status and stop as provided by subsection (a) of this section.

(d)

(1)

An employee who enters on approved leave without pay in the circumstances described in paragraph (2) may elect to have such employee’s life insurance continue (beyond the end of the 12 months of coverage provided for under subsection (a)) for an additional 12 months and arrange to pay currently into the Employees’ Life Insurance Fund, through such employee’s employing agency, both employee and agency contributions, from the beginning of that additional 12 months of coverage. The employing agency shall forward the premium payments to the Fund. If the employeedoes not so elect, such employee’s insurance will continue during nonpay status and stop as provided by subsection (a). An individual making an election under this subsection may cancel that election at any time, in which case such employee’s insurance will stop as provided by subsection (a) or upon receipt of notice of cancellation, whichever is later.

(2)This subsection applies in the case of any employee who—

(A)

is a member of a reserve component of the armed forces called or ordered to active duty under a call or order that does not specify a period of 30 days or less; and

(B)

enters on approved leave without pay to perform active duty pursuant to such call or order.

(e)

If the insurance of an employee stops because of separation from the service or suspension without pay, and the separation or suspension is thereafter officially found to have been erroneous, the employee is deemed to have been insured during the period of erroneous separation or suspension. Deductions otherwise required by section 8707 of this chapter shall not be withheld from any backpay awarded for the period of separation or suspension unless death or accidental dismemberment of the employee occurs during such period.

(f)

(1)

Under regulations prescribed by the Office, each policy purchased under this chapter shall provide that an insured employee or former employeemay make an irrevocable assignment of the employee’s or former employee’s incidents of ownership in the policy.

(2)

A court decree of divorce, annulment, or legal separation, or the terms of a court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation, may direct that an insured employee or former employee make an irrevocable assignment of the employee’s or former employee’s incidents of ownership in insurance under this chapter (if there is no previous assignment) to the person specified in the court order or court-approved property settlement agreement.

(g)

If the insurance of a former employee receiving a disability annuity under section 8337 of this title stops because of the termination of such annuity, and such annuity is thereafter restored under the second or third sentence of subsection (e) of such section, such former employee may, under regulations prescribed by the Office, elect to resume the insurance coverage which was so stopped.

(h)

The insurance of an employee under a policy purchased under section 8709shall not be invalidated based on a finding that the employee erroneously became insured, or erroneously continued insurance upon retirement or entitlement to compensation under subchapter I of chapter 81 of this title, if such finding occurs after the erroneous insurance and applicable withholdings have been in force for 2 years during the employee’s lifetime.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 595; Pub. L. 90–83, § 1(92), Sept. 11, 1967, 81 Stat. 219; Pub. L. 92–529, Oct. 21, 1972, 86 Stat. 1050; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–583, § 1(a), Nov. 2, 1978, 92 Stat. 2481; Pub. L. 96–427, § 3(a), Oct. 10, 1980, 94 Stat. 1832; Pub. L. 98–353, title II, §§ 206, 208, July 10, 1984, 98 Stat. 351, as amended by Pub. L. 99–336, § 7(1), June 19, 1986, 100 Stat. 639; Pub. L. 99–53, § 3(b), June 17, 1985, 99 Stat. 95; Pub. L. 99–335, title II, § 207(k)(2), June 6, 1986, 100 Stat. 597; Pub. L. 99–336, § 7(1), June 19, 1986, 100 Stat. 639; Pub. L. 102–378, § 2(74), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 103–336, § 4, Oct. 3, 1994, 108 Stat. 2662; Pub. L. 105–205, § 2, July 22, 1998, 112 Stat. 683; Pub. L. 105–311, § 5, Oct. 30, 1998, 112 Stat. 2951; Pub. L. 110–181, div. A, title XI, § 1102, Jan. 28, 2008, 122 Stat. 345.)

5 - 4 - 7 - 5 - 7 Employee deductions; withholding

(a)

Subject to subsection (c)(2), during each period in which an employee is insured under a policy purchased by the Office of Personnel Management under section 8709 of this title, there shall be withheld from the employee’s pay a share of the cost of the group life insurance and accidental death and dismemberment insurance.

(b)

(1)

Subject to subsection (c)(2), whenever life insurance continues after an employee retires on an immediate annuity or while the employee is receiving compensation under subchapter I of chapter 81 of this titlebecause of disease or injury to the employee, as provided in section 8706(b) of this title, deductions for insurance shall be withheld from the employee’s annuity or compensation, except that, in any case in which the insurance is continued as provided in section 8706(b)(3)(A) of this title, the deductions shall not be made for months after the calendar month in which theemployee becomes 65 years of age.

(2)

Notwithstanding paragraph (1) of this subsection, insurance shall be so continued without cost (other than as provided under section 8706(b)(3)(B)) to each employee who so retires, or commences receiving compensation, on or before December 31, 1989.

(c)

(1)

The amount withheld from the pay, annuity, or compensation of each employee subject to insurance deductions shall be at the rate, adjusted to the nearest half-cent, of 66⅔ percent of the level cost as determined by the Office for each $1,000 of the employee’s basic insurance amount.

(2)

An employee who is subject to withholdings under this section and whose pay, annuity, or compensation is insufficient to cover such withholdings may nevertheless continue insurance if the employee arranges to pay currently into the Employees’ Life Insurance Fund, through the agency or retirement system that administers pay, annuity, or compensation, an amount equal to the withholdings that would otherwise be required under this section.

(d)

If an agency fails to withhold the proper amount of life insurance deductions from an individual’s salary, compensation, or retirement annuity, the collection of unpaid deductions may be waived by the agency if, in the judgment of the agency, the individual is without fault and recovery would be against equity and good conscience. However, if the agency so waives the collection of unpaid deductions, the agency shall submit an amount equal to the sum of the uncollected deductions and related agency contributions required under section 8708 of this title to the Office for deposit to the Employees’ Life Insurance Fund.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 595; Pub. L. 90–206, title IV, § 402, Dec. 16, 1967, 81 Stat. 647; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–427, § 4(a), Oct. 10, 1980, 94 Stat. 1833; Pub. L. 105–311, § 6(1), Oct. 30, 1998, 112 Stat. 2951.)

5 - 4 - 7 - 5 - 8 Government contributions

(a)

For each period in which an employee is insured under a policy of insurance purchased by the Office of Personnel Management under section 8709 of this title, a sum equal to one-half the amount which is withheld from the pay of theemployee under section 8707 of this title shall be contributed from the appropriation or fund which is used to pay him.

(b)

When an employee is paid by the Chief Administrative Officer of the House of Representatives, the Chief Administrative Officer may contribute the sum required by subsection (a) of this section from the applicable accounts of the House of Representatives.

(c)

When the employee is an elected official, the sum required by subsection (a) of this section is contributed from an appropriation or fund available for payment of other salaries of the same office or establishment.

(d)

(1)

Except as otherwise provided in this subsection, for each period in which an employee continues life insurance after retirement or while in receipt of compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee, as provided under section 8706(b) of this title, a sum equal to one-half of the amount which is withheld from theemployee’s annuity or compensation under section 8707 of this title shall be contributed by the Office from annual appropriations which are authorized to be made for that purpose and which may be made available until expended.

(2)Contributions under this subsection—

(A)

shall not be made other than with respect to individuals who retire, or commence receiving compensation, after December 31, 1989;

(B)

shall not be made with respect to any individual for months after the calendar month in which such individual becomes 65 years of age; and

(C)

shall, in the case of any individual who elects coverage under subparagraph (B) of section 8706(b)(3) of this title, be equal to the amount which would apply under this subsection if such individual had instead elected coverage under subparagraph (A) of such section.

(3)The United States Postal Service shall pay the contributions required under this subsection with respect to any individual who—

(A)

first becomes an annuitant by reason of retirement from employment with the United States Postal Service after December 31, 1989; or

(B)

commences receiving compensation under subchapter I of chapter 81 of this title (because of disease or injury to the individual) after December 31, 1989, if the position last held by the individual before commencing to receive such compensation was within the United States Postal Service.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 595; Pub. L. 90–206, title IV, § 403, Dec. 16, 1967, 81 Stat. 647; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 101–303, § 2, May 29, 1990, 104 Stat. 250; Pub. L. 104–186, title II, § 215(18), Aug. 20, 1996, 110 Stat. 1746.)

5 - 4 - 7 - 5 - 9 Insurance policies

(a)The Office of Personnel Management, without regard to section 6101(b) to (d) of title 41, may purchase from one or more life insurance companies a policy or policies of group life and accidental death and dismemberment insurance to provide the benefits specified by this chapter. A company must meet the following requirements:

(1)

It must be licensed to transact life and accidental death and dismemberment insurance under the laws of 48 of the States and the District of Columbia.

(2)

It must have in effect, on the most recent December 31 for which information is available to the Office, an amount of employee group life insurance equal to at least 1 percent of the total amount of employee group life insurance in the United States in all life insurance companies.

(b)

A company issuing a policy under subsection (a) of this section shall establish an administrative office under a name approved by the Office.

(c)

The Office at any time may discontinue a policy purchased from a company under subsection (a) of this section.

(d)

(1)

The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State or political subdivision thereof, or any regulation issued thereunder, which relates to group life insurance to the extent that the law or regulation is inconsistent with the contractual provisions.

(2)

For the purpose of this section, “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and a territory or possession of the United States.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 596; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–427, § 5(a), Oct. 10, 1980, 94 Stat. 1834; Pub. L. 111–350, § 5(a)(11), Jan. 4, 2011, 124 Stat. 3841.)

5 - 4 - 7 - 5 - 10 Reinsurance

(a)

The Office of Personnel Management shall arrange with a company issuing a policy under this chapter for the reinsurance, under conditions approved by the Office, of portions of the total amount of insurance under the policy, determined under this section, with other life insurance companies which elect to participate in the reinsurance.

(b)

The Office shall determine for and in advance of a policy year which companies are eligible to participate as reinsurers and the amount of insurance under a policy which is to be allocated to the issuing company and to reinsurers. The Office shall make this determination at least every 3 years and when a participating company withdraws.

(c)The Office shall establish a formula under which the amount of insurance retained by an issuing company after ceding reinsurance, and the amount of reinsurance ceded to each reinsurer, is in proportion to the total amount of each company’s group life insurance, excluding insurance purchased under this chapter, in force in the United States on the determination date, which is the most recent December 31 for which information is available to the Office. In determining the proportions, the portion of a company’s group life insurance in force on the determination date in excess of $100,000,000 shall be reduced by—

(1)

25 percent of the first $100,000,000 of the excess;

(2)

50 percent of the second $100,000,000 of the excess;

(3)

75 percent of the third $100,000,000 of the excess; and

(4)

95 percent of the remaining excess.

However, the amount retained by or ceded to a company may not exceed 25 percent of the amount of the company’s total life insurance in force in the United States on the determination date.

(d)A fraternal benefit association which is—

(1)

licensed to transact life insurance under the laws of a State or the District of Columbia; and

(2)

engaged in issuing insurance certificates on the lives of employees of the United States exclusively;

is eligible to act as a reinsuring company and may be allocated an amount of reinsurance equal to 25 percent of its total life insurance in force on employees of the United States on the determination date named by subsection (c) of this section.

(e)

An issuing company or reinsurer is entitled, as a minimum, to be allocated an amount of insurance under the policy equal to any reduction from December 31, 1953, to the determination date, in the amount of the company’s group life insurance under policies issued to associations of employees of the United States. However, any increase under this subsection in the amount allocated is reduced by the amount in force on the determination date of any policy covering life insurance agreements assumed by the Office.

(f)

The Office may modify the computations under this section as necessary to carry out the intent of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 596; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 7 - 5 - 11 Basic tables of premium rates

(a)A policy purchased under this chapter shall include, for the first policy year, basic tables of premium rates as follows:

(1)

For group life insurance, a schedule of basic premium rates by age which the Office of Personnel Management determines to be consistent with the lowest schedule of basic premium rates generally charged for new group life insurance policies issued to large employers.

(2)

For group accidental death and dismemberment insurance, a basic premium rate which the Office determines is consistent with the lowest rate generally charged for new group accidental death and dismemberment policies issued to large employers.

The schedule for group life insurance, except as otherwise provided by this section, shall be applied to the distribution by age of the amounts of group life insurance under the policy at its date of issuance to determine an average basic premium rate per $1,000 of life insurance.

(b)

The policy shall provide that the basic premium rates determined for the first policy year continue for later policy years except as readjusted for a later year based on experience under the policy. The company issuing the policy may make the readjustment on a basis that the Office determines in advance of the policy year is consistent with the general practice of life insurance companies under policies of group life and group accidental death and dismemberment insurance issued to large employers.

(c)

The policy shall provide that if the Office determines that ascertaining the actual age distribution of the amounts of group life insurance in force at the date of issue of the policy or at the end of the first or any later year of insurance thereunder would not be possible except at a disproportionately high expense, the Office may approve the determination of a tentative average group life premium rate, for the first or any later policy year, instead of using the actual age distribution. The Office, on request by the company issuing the policy, shall redetermine the tentative average premium rate during any policy year, if experience indicates that the assumptions made in determining that rate were incorrect for that year.

(d)

The policy shall stipulate the maximum expense and risk charges for the first policy year. The Office shall determine these charges on a basis consistent with the general level of charges made by life insurance companies under policies of group life and accidental death and dismemberment insurance issued to large employers. The maximum charges continue from year to year, except that the Office may redetermine them for any year either by agreement with the company issuing the policy or on written notice given to the company at least 1 year before the beginning of the year for which the redetermined maximum charges will be effective.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 597; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 7 - 5 - 12 Annual accounting; special contingency reserve

A policy purchased under this chapter shall provide for an accounting to the Office of Personnel Management not later than 90 days after the end of each policy year. The accounting shall set forth, in a form approved by the Office—

(1)

the amounts of premiums actually accrued under the policy from its date of issue to the end of the policy year;

(2)

the total of all mortality and other claim charges incurred for that period; and

(3)

the amounts of the insurers’ expense and risk charges for that period.

An excess of the total of paragraph (1) of this section over the sum of paragraphs (2) and (3) of this section shall be held by the company issuing the policy as a special contingency reserve to be used by the company only for charges under the policy. The reserve shall bear interest at a rate determined in advance of each policy year by the company and approved by the Office as being consistent with the rates generally used by the company for similar funds held under other group life insurance policies. When the Office determines that the special contingency reserve has attained an amount estimated by it to make satisfactory provision for adverse fluctuations in future charges under the policy, any further excess shall be deposited in the Treasury of the United States to the credit of the Employees’ Life Insurance Fund. When a policy is discontinued, any balance remaining in the special contingency reserve after all charges have been made shall be deposited in the Treasury to the credit of the Fund. The company may make the deposit in equal monthly installments over a period of not more than 2 years.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 598; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

5 - 4 - 7 - 5 - 13 Effect of other statutes

Any provision of law outside of this chapter which provides coverage or any other benefit under this chapter to any individuals who (based on their being employed by an entity other than the Government) would not otherwise be eligible for any such coverage or benefit shall not apply with respect to any individual appointed, transferred, or otherwise commencing that type of employment on or after October 1, 1988.

(Added Pub. L. 100–238, title I, § 108(a)(2)(A), Jan. 8, 1988, 101 Stat. 1747.)

5 - 4 - 7 - 5 - 14 Employees’ Life Insurance Fund

(a)The amounts withheld from employees under section 8707 of this title and the sums contributed from appropriations and funds under section 8708 of this title shall be deposited in the Treasury of the United States to the credit of theEmployees’ Life Insurance Fund. The Fund is available without fiscal year limitation for—

(1)

premium payments under an insurance policy purchased under this chapter; and

(2)

expenses incurred by the Office of Personnel Management in the administration of this chapter within the limitations that may be specified annually by appropriation acts.

(b)

The Secretary of the Treasury may invest and reinvest any of the money in the Fund in interest-bearing obligations of the United States, and may sell these obligations for the purposes of the Fund. The interest on and the proceeds from the sale of these obligations, and the income derived from dividend or premium rate adjustments from insurers, become a part of the Fund.

(c)

(1)

No tax, fee, or other monetary payment may be imposed or collected by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, on, or with respect to, any premium paid under an insurance policy purchased under this chapter.

(2)

Paragraph (1) of this subsection shall not be construed to exempt any company issuing a policy of insurance under this chapter from the imposition, payment, or collection of a tax, fee, or other monetary payment on the net income or profit accruing to or realized by that company from business conducted under this chapter, if that tax, fee, or payment is applicable to a broad range of business activity.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 598; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–499, title IV, § 405(a), Dec. 5, 1980, 94 Stat. 2606.)

5 - 4 - 7 - 5 - 15 Optional insurance

(a)

Under the conditions, directives, and terms specified in sections 8709–8712of this title, the Office of Personnel Management, without regard to section 6101(b) to (d) of title 41, may purchase a policy which shall make available to each insured employee equal amounts of optional life insurance and accidental death and dismemberment insurance in addition to the amounts provided in section 8704(a) of this title.

(b)

(1)

An employee who is deployed in support of a contingency operation (as that term is defined in section 101(a)(13) of title 10) or an employee of the Department of Defense who is designated as emergency essential under section 1580 of title 10 shall be insured under the policy of insurance under this section if the employee, within 60 days after the date of notification of deployment or designation, elects to be insured under the policy of insurance. An election under this paragraph shall be effective when provided to the Office in writing, in the form prescribed by the Office, within such 60-day period.

(2)

The optional life insurance and accidental death and dismemberment insurance shall be made available to each insured employee under such conditions as the Office shall prescribe and in amounts approved by the Office but not more than the greater of $10,000 or an amount which, when added to the amount provided in section 8704(a) of this title, makes the sum of his insurance equal to his annual pay.

(c)

(1)

Except as otherwise provided in this subsection, the optional insurance on an employee stops on his separation from service or 12 months after discontinuance of his pay, whichever is earlier, subject to a provision for temporary extension of life insurance coverage and for conversion to an individual policy of life insurance under conditions approved by the Office.

(2)

(A)In the case of any employee who retires on an immediate annuity and has been insured under this section throughout—

(i)

the 5 years of service immediately preceding the date of such retirement, or

(ii)

the full period or periods of service during which the employeewas entitled to be insured, if less than 5 years,

the amount of optional life insurance only which has been in force throughout such period may be continued, under conditions determined by the Office.

(B)In the case of any employee who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee and has been insured under this section throughout—

(i)

the 5 years of service immediately preceding the date such employee becomes entitled to such compensation, or

(ii)

the full period or periods of service during which the employeewas entitled to be insured, if less than 5 years,

the amount of optional life insurance only which has been in force throughout such period may be continued, under conditions determined by the Office, during the period the employee is receiving such compensation for disease or injury and is held by the Secretary of Labor or his delegate to be unable to return to duty.

(C)

The amount of optional life insurance continued under subparagraph (A) or subparagraph (B) of this paragraph shall be reduced by 2 percent at the end of each full calendar month after the date the employeebecomes 65 years of age and is retired or is receiving compensation for disease or injury. The Office shall prescribe minimum amounts, not less than 25 percent of the amount of life insurance in force before the first reduction, to which the insurance may be reduced.

(3)

Notwithstanding paragraph (c)(1) of this section,[1] a justice or judge of the United States as defined by section 8701(a)(5) of this title who resigns his office without meeting the requirements of section 371(a) of title 28, United States Code, for continuation of the judicial salary shall have the right to convert regular optional life insurance coverage issued under this section during his judicial service to an individual policy of life insurance under the same conditions approved by the Office governing conversion of basic life insurance coverage for employees eligible as provided in section 8706(a) of this title.

(d)

(1)

During each period in which an employee has the optional insurance the full cost thereof shall be withheld from his pay. During each period in which an employee continues optional life insurance after retirement or while in receipt of compensation for work injuries, as provided in section 8706(b) of this title, the full cost thereof shall be withheld from his annuity or compensation, except that, at the end of the calendar month in which he becomes 65 years of age, the optional life insurance shall be without cost to him. Amounts so withheld shall be deposited, used, and invested as provided in section 8714 of this title and shall be reported and accounted for separately from amounts withheld and contributed under sections 8707 and 8708 of this title.

(2)

If an agency fails to withhold the proper cost of optional insurance from an individual’s salary, compensation, or retirement annuity, the collection of amounts properly due may be waived by the agency if, in the judgment of the agency, the individual is without fault and recovery would be against equity and good conscience. However, if the agency so waives the collection of any unpaid amount, the agency shall submit an amount equal to the uncollected amount to the Office for deposit to the Employees’ Life Insurance Fund.

(3)

Notwithstanding paragraph (1), an employee who is subject to withholdings under this subsection and whose pay, annuity, or compensation is insufficient to cover such withholdings may nevertheless continue optional insurance if the employee arranges to pay currently into the Employees’ Life Insurance Fund, through the agency or retirement system which administers pay, annuity, or compensation, an amount equal to the withholdings that would otherwise be required under this subsection.

(e)

The cost of the optional insurance shall be determined from time to time by the Office on the basis of such age groups as it considers appropriate.

(f)

The amount of optional life, or life and accidental death, insurance in force on an employee at the date of his death shall be paid as provided in section 8705 of this title.

(Added Pub. L. 90–206, title IV, § 404(1), Dec. 16, 1967, 81 Stat. 647; amended Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–583, § 1(c), Nov. 2, 1978, 92 Stat. 2481; Pub. L. 96–427, § 6, Oct. 10, 1980, 94 Stat. 1834; Pub. L. 98–353, title II, § 206, July 10, 1984, 98 Stat. 351, as amended by Pub. L. 99–336, § 7(1), June 19, 1986, 100 Stat. 639; Pub. L. 99–335, title II, § 207(k)(3), June 6, 1986, 100 Stat. 597; Pub. L. 99–336, § 7(1), June 19, 1986, 100 Stat. 639; Pub. L. 105–311, § 6(2), Oct. 30, 1998, 112 Stat. 2951; Pub. L. 110–417, [div. A], title XI, § 1103(b), Oct. 14, 2008, 122 Stat. 4616; Pub. L. 111–350, § 5(a)(12), Jan. 4, 2011, 124 Stat. 3841.)

5 - 4 - 7 - 5 - 16 Additional optional life insurance

(a)

Under the conditions, directives, and terms specified in sections 8709 through 8712 of this title, the Office of Personnel Management, without regard to section 6101(b) to (d) of title 41, may purchase a policy which shall make available to each employee insured under section 8702 of this title amounts of optional life insurance (without accidental death and dismemberment insurance) on the employee’s family members.

(b)

(1)The optional life insurance on family members provided under this section shall be made available to each eligible employee who has elected coverage under this section, under conditions the Office shall prescribe, in multiples, at the employee’s election, of 1, 2, 3, 4, or 5 times—

(A)

$5,000 for a spouse; and

(B)

$2,500 for each child described under section 8701(d).

(2)

An employee may reduce or stop coverage elected pursuant to this section at any time.

(c)

(1)

Except as otherwise provided in this subsection, the optional life insurance on family members shall stop at the earlier of the employee’s death, the employee’s separation from the service, or 12 months after discontinuance of pay, subject to a provision for temporary extension of life insurance coverage and for conversion to individual policies of life insurance under conditions approved by the Office.

(2)In the case of any employee who retires on an immediate annuity or who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee and who has had in force insurance under this section for no less than—

(A)

the 5 years of service immediately preceding the date of retirement or entitlement to compensation, or

(B)

the full period or periods of service during which the insurance was available to the employee, if fewer than 5 years,

optional life insurance on family members may be continued under the same conditions as provided in section 8714b(c)(2) through (4).

(d)

(1)

During each period in which the optional life insurance on family members is in force the full cost thereof shall be withheld from the employee’s pay. During each period in which an employee continues optional life insurance on family members after retirement or while in receipt of compensation under subchapter I of chapter 81 of this titlebecause of disease or injury to the employee, as provided in subsection (c) of this section, the full cost shall be withheld from the annuity or compensation, except that, beginning at the end of the calendar month in which the former employee becomes 65 years of age, the optional life insurance on family members shall be without cost to the employee.Notwithstanding the preceding sentence, the full cost shall be continued after the calendar month in which the former employee becomes 65 years of age if, and for so long as, an election under this section corresponding to that described in section 8714b(c)(3)(B) remains in effect with respect to such former employee. Amounts so withheld shall be deposited, used, and invested as provided in section 8714 of this title and shall be reported and accounted for together with amounts withheld under section 8714a(d) of this title.

(2)

If an agency fails to withhold the proper cost of optional life insurance on family members from an individual’s salary, compensation, or retirement annuity, the collection of amounts properly due may be waived by the agency if, in the judgment of the agency, the individual is without fault and recovery would be against equity and good conscience. However, if the agency so waives the collection of any unpaid amount, the agency shall submit an amount equal to the uncollected amount to the Office for deposit to the Employees’ Life Insurance Fund.

(3)

Notwithstanding paragraph (1), an employee who is subject to withholdings under this subsection and whose pay, annuity, or compensation is insufficient to cover such withholdings may nevertheless continue optional life insurance on family members if the employeearranges to pay currently into the Employees’ Life Insurance Fund, through the agency or retirement system that administers pay, annuity, or compensation, an amount equal to the withholdings that would otherwise be required under this subsection.

(e)

The cost of the optional life insurance on family members shall be determined from time to time by the Office on the basis of the employee’s age relative to such age groups as the Office establishes under section 8714a(e) of this title.

(f)

The amount of optional life insurance which is in force under this section on a family member of an employee or former employee on the date of the death of the family member shall be paid, on the establishment of a valid claim by the employee, to such employee or, in the event of the death of the employeebefore payment can be made, to the person or persons entitled to the group life insurance in force on the employee under section 8705 of this title.

(Added Pub. L. 96–427, § 8(a), Oct. 10, 1980, 94 Stat. 1836; amended Pub. L. 98–353, title II, § 206, as amended by Pub. L. 99–336, § 7(1), June 19, 1986, 100 Stat. 639; Pub. L. 99–335, title II, § 207(k)(5), June 6, 1986, 100 Stat. 598; Pub. L. 99–336, § 7(1), June 19, 1986, 100 Stat. 639; Pub. L. 105–311, §§ 6(4), 8, Oct. 30, 1998, 112 Stat. 2951, 2953; Pub. L. 111–350, § 5(a)(14), Jan. 4, 2011, 124 Stat. 3842.)

5 - 4 - 7 - 5 - 17 Optional life insurance on family members

(a)

(b)

(A)

$5,000 for a spouse; and

(B)

$2,500 for each child described under section 8701(d).

(2)

An employee may reduce or stop coverage elected pursuant to this section at any time.

(c)

(1)

(A)

the 5 years of service immediately preceding the date of retirement or entitlement to compensation, or

(B)

the full period or periods of service during which the insurance was available to the employee, if fewer than 5 years,

optional life insurance on family members may be continued under the same conditions as provided in section 8714b(c)(2) through (4).

(d)

(1)

(2)

(3)

Notwithstanding paragraph (1), an employee who is subject to withholdings under this subsection and whose pay, annuity, or compensation is insufficient to cover such withholdings may nevertheless continue optional life insurance on family members if the employeearranges to pay currently into the Employees’ Life Insurance Fund, through the agency or retirement system that administers pay, annuity, or compensation, an amount equal to the withholdings that would otherwise be required under this subsection.

(e)

(f)

5 - 4 - 7 - 5 - 18 Option to receive “living benefits”

(a)

For the purpose of this section, an individual shall be considered to be “terminally ill” if such individual has a medical prognosis that such individual’s life expectancy is 9 months or less.

(b)The Office of Personnel Management shall prescribe regulations under which any individual covered by group life insurance under section 8704(a) may, if such individual is terminally ill, elect to receive a lump-sum payment equal to—

(1)the full amount of insurance under section 8704(a) (or portion thereof designated for this purpose under subsection (d)(4)) which would otherwise be payable under this chapter (on the establishment of a valid claim)—

(A)

computed based on a date determined under regulations of the Office (but not later than 30 days after the date on which the individual’s application for benefits under this section is approved or deemed approved under subsection (d)(3)); and

(B)

assuming continued coverage under this chapter at that time;

reduced by

(2)

an amount necessary to assure that there is no increase in the actuarial value of the benefit paid (as determined under regulations of the Office).

(c)

(1)If a lump-sum payment is taken under this section—

(A)no insurance under the provisions of section 8704(a) or (b) shall be payable based on the death or any loss of the individual involved, unless the lump-sum payment represents only a portion of the total benefits which could have been taken, in which case benefits under those provisions shall remain in effect, except that the basic insurance amounton which they are based—

(i)

shall be reduced by the percentage which the designated portion comprised relative to the total benefits which could have been taken (rounding the result to the nearest multiple of $1,000 or, if midway between multiples of $1,000, to the next higher multiple of $1,000); and

(ii)

shall not be subject to further adjustment; and

(B)

deductions and withholdings under section 8707, and contributions under section 8708, shall be terminated with respect to such individual (or reduced in a manner consistent with the percentage reduction in the individual’s basic insurance amount, if applicable), effective with respect to any amounts which would otherwise become due on or after the date of payment under this section.

(2)

An individual who takes a lump-sum payment under this section (whether full or partial) remains eligible for optional benefits under sections 8714a–8714c (subject to payment of the full cost of those benefits in accordance with applicable provisions of the section or sections involved, to the same extent as if no election under this section had been made).

(d)

(1)

The Office’s regulations shall include provisions regarding the form and manner in which an application under this section shall be made and the procedures in accordance with which any such application shall be considered.

(2)

An application shall not be considered to be complete unless it includes such information and supporting evidence as the regulations require, including certification by an appropriate medical authority as to the nature of the individual’s illness and that the individual is not expected to live more than 9 months because of that illness.

(3)

(A)

In order to ascertain the reliability of any medical opinion or finding submitted as part of an application under this section, the covered individual may be required to submit to a medical examination under the direction of the agency or entity considering the application. The individual shall not be liable for the costs associated with any examination required under this subparagraph.

(B)

Any decision by the reviewing agency or entity with respect to an application for benefits under this section (including one relating to an individual’s medical prognosis) shall not be subject to administrative review.

(4)

(A)

An individual making an election under this section may designate that only a limited portion (expressed as a multiple of $1,000) of the total amount otherwise allowable under this section be paid pursuant to such election.

(B)

A designation under this paragraph may not be made by an individual described in paragraph (1) or (2) of section 8706(b).

(5)

An election to receive benefits under this section shall be irrevocable, and not more than one such election may be made by any individual.

(6)

The regulations shall include provisions to address the question of how to apply section 8706(b)(3)(B) in the case of an electing individual who has attained 65 years of age.

(Added Pub. L. 103–409, § 2(a), Oct. 25, 1994, 108 Stat. 4230.)

5 - 4 - 7 - 5 - 19 Jurisdiction of courts

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 599; Pub. L. 97–164, title I, § 160(a)(2), Apr. 2, 1982, 96 Stat. 48; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516.)

5 - 4 - 7 - 5 - 20 Regulations

(a)

The Office of Personnel Management may prescribe regulations necessary to carry out the purposes of this chapter.

(b)The regulations of the Office may prescribe the time at which and the conditions under which an employee is eligible for coverage under this chapter. The Office, after consulting the head of the agency or other employing authority concerned, may exclude an employee on the basis of the nature and type of his employment or conditions pertaining to it, such as short-term appointment, seasonal, intermittent employment, and employment of like nature. The Office may not exclude—

(1)

an employee or group of employees solely on the basis of the hazardous nature of employment;

(2)

a teacher in the employ of the Board of Education of the District of Columbia, whose pay is fixed by section 1501 of title 31, District of Columbia Code, on the basis of the fact that the teacher is serving under a temporary appointment if the teacher has been so employed by the Board for a period or periods totaling not less than two school years; or

(3)

an employee who is occupying a position on a part-time career employment basis (as defined in section 3401(2) of this title).

(c)

The Secretary of Agriculture shall prescribe regulations to effect the application and operation of this chapter to an individual named by section 8701(a)(8) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 599; Pub. L. 95–437, § 4(b), Oct. 10, 1978, 92 Stat. 1058; Pub. L. 95–454, title IX, § 906(a)(2), (3), (c)(2)(F), (G), Oct. 13, 1978, 92 Stat. 1224, 1227.)

5 - 4 - 7 - 6 HEALTH INSURANCE (§§ 8901 to 8914)

5 - 4 - 7 - 6 - 1 Definitions

For the purpose of this chapter—

(1)“employee” means—

(A)

an employee as defined by section 2105 of this title;

(B)

a Member of Congress as defined by section 2106 of this title;

(C)

a Congressional employee as defined by section 2107 of this title;

(D)

the President;

(E)

an individual first employed by the government of the District of Columbia before October 1, 1987;

(F)

an individual employed by Gallaudet College; [1]

(G)

an individual employed by a county committee established under section 590h(b) of title 16;

(H)

an individual appointed to a position on the office staff of a former President under section 1(b) of the Act of August 25, 1958 (72 Stat. 838);

(I)

(J)

an individual who is employed by the Roosevelt Campobello International Park Commission and is a citizen of the United States,

but does not include—

(i)

an employee of a corporation supervised by the Farm Credit Administration if private interests elect or appoint a member of the board of directors;

(ii)

(iii)

an employee of the Tennessee Valley Authority; or

(iv)

an employee excluded by regulation of the Office of Personnel Management under section 8913(b) of this title;

(2)

“Government” means the Government of the United States and the government of the District of Columbia;

(3)“annuitant” means—

(A)an employee who retires—

(i)

on an immediate annuity under subchapter III of chapter 83 of this title, or another retirement system for employees of the Government,after 5 or more years of service;

(ii)

under section 8412 or 8414 of this title;

(iii)

for disability under subchapter III of chapter 83 of this title, chapter 84 of this title, or another retirement system for employees of the Government; or

(iv)

on an immediate annuity under a retirement system established for employees described in section 2105(c), in the case of an individual who elected under section 8347(q)(2) or 8461(n)(2) to remain subject to such a system;

(B)

a member of a family who receives an immediate annuity as the survivor of an employee (including a family member entitled to an amount under section 8442(b)(1)(A), whether or not such family member is entitled to an annuity under section 8442(b)(1)(B)) or of a retired employee described by subparagraph (A) of this paragraph;

(C)

an employee who receives monthly compensation under subchapter I of chapter 81 of this title and who is determined by the Secretary of Labor to be unable to return to duty; and

(D)a member of a family who receives monthly compensation under subchapter I of chapter 81 of this title as the surviving beneficiary of—

(i)

an employee who dies as a result of injury or illness compensable under that subchapter; or

(ii)

a former employee who is separated after having completed 5 or more years of service and who dies while receiving monthly compensation under that subchapter and who has been held by the Secretary to have been unable to return to duty;

(4)

“service”, as used by paragraph (3) of this section, means service which is creditable under subchapter III of chapter 83 or chapter 84 of this title;

(5)“member of family” means the spouse of an employee or annuitant and an unmarried dependent child under 22 years of age, including—

(A)

an adopted child or recognized natural child; and

(B)

a stepchild or foster child but only if the child lives with the employee or annuitant in a regular parent-child relationship;

or such an unmarried dependent child regardless of age who is incapable of self-support because of mental or physical disability which existed before age 22;

(6)

“health benefits plan” means a group insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar group arrangement provided by a carrier for the purpose of providing, paying for, or reimbursing expenses for health services;

(7)

“carrier” means a voluntary association, corporation, partnership, or other nongovernmental organization which is lawfully engaged in providing, paying for, or reimbursing the cost of, health services under group insurance policies or contracts, medical or hospital service agreements, membership or subscription contracts, or similar group arrangements, in consideration of premiums or other periodic charges payable to the carrier, including a health benefits plan duly sponsored or underwritten by an employee organization and an association of organizations or other entities described in this paragraph sponsoring a health benefits plan;

(8)“employee organization” means—

(A)

an association or other organization of employees which is national in scope, or in which membership is open to all employees of a Governmentagency who are eligible to enroll in a health benefits plan under this chapter and which, after December 31, 1978, and before January 1, 1980, applied to the Office for approval of a plan provided under section 8903(3) of this title; and

(B)

an association or other organization which is national in scope, in which membership is open only to employees, annuitants, or former spouses, or any combination thereof, and which, during the 90-day period beginning on the date of enactment of section 8903a of this title, applied to the Office for approval of a plan provided under such section;

(9)

“dependent”, in the case of any child, means that the employee or annuitantinvolved is either living with or contributing to the support of such child, as determined in accordance with such regulations as the Office shall prescribe;

(10)“former spouse” means a former spouse of an employee, former employee,or annuitant—

(A)

who has not remarried before age 55 after the marriage to the employee, former employee, or annuitant was dissolved,

(B)

who was enrolled in an approved health benefits plan under this chapter as a family member at any time during the 18-month period before the date of the dissolution of the marriage to the employee, former employee, orannuitant, and

(C)

(i)

who is receiving any portion of an annuity under section 8345(j) or 8467 of this title or a survivor annuity under section 8341(h) or 8445 of this title (or benefits similar to either of the aforementioned annuity benefits under a retirement system for Government employees other than the Civil Service Retirement System or the Federal Employees’Retirement System),

(ii)

as to whom a court order or decree referred to in section 8341(h), 8345(j), 8445, or 8467 of this title (or similar provision of law under any such retirement system other than the Civil Service Retirement System or the Federal Employees’ Retirement System) has been issued, or for whom an election has been made under section 8339(j)(3) or 8417(b) of this title (or similar provision of law), or

(iii)

who is otherwise entitled to an annuity or any portion of an annuity as a former spouse under a retirement system for Government employees,

except that such term shall not include any such unremarried former spouse of a former employee whose marriage was dissolved after the former employee’s separation from the service (other than by retirement); and

(11)“qualified clinical social worker” means an individual—

(A)

who is licensed or certified as a clinical social worker by the State in which such individual practices; or

(B)who, if such State does not provide for the licensing or certification of clinical social workers—

(i)

is certified by a national professional organization offering certification of clinical social workers; or

(ii)

meets equivalent requirements (as prescribed by the Office).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 600; Pub. L. 90–83, § 1(95), Sept. 11, 1967, 81 Stat. 219; Pub. L. 91–418, §§ 2, 3(b), Sept. 25, 1970, 84 Stat. 869; Pub. L. 93–160, § 1(b), Nov. 27, 1973, 87 Stat. 635; Pub. L. 95–368, § 2, Sept. 17, 1978, 92 Stat. 606; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 95–583, § 2, Nov. 2, 1978, 92 Stat. 2482; Pub. L. 96–54, § 2(a)(52), Aug. 14, 1979, 93 Stat. 384; Pub. L. 96–70, title I, § 1209(c), Sept. 27, 1979, 93 Stat. 463; Pub. L. 96–179, § 2, Jan. 2, 1980, 93 Stat. 1299; Pub. L. 98–615, § 3(1), Nov. 8, 1984, 98 Stat. 3202; Pub. L. 99–53, § 1(a), June 17, 1985, 99 Stat. 93; Pub. L. 99–251, title I, § 105(a), Feb. 27, 1986, 100 Stat. 15; Pub. L. 99–335, title II, § 207(l), June 6, 1986, 100 Stat. 598; Pub. L. 99–556, title V, § 503, Oct. 27, 1986, 100 Stat. 3141; Pub. L. 100–679, § 13(c), Nov. 17, 1988, 102 Stat. 4071; Pub. L. 101–508, title VII, § 7202(l), Nov. 5, 1990, 104 Stat. 1388–339; Pub. L. 102–378, § 2(75), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 105–266, § 3(a), Oct. 19, 1998, 112 Stat. 2366; Pub. L. 110–74, § 1, Aug. 9, 2007, 121 Stat. 723; Pub. L. 114–136, § 2(c)(5), Mar. 18, 2016, 130 Stat. 305.)

5 - 4 - 7 - 6 - 2 Contracting authority

(a)

The Office of Personnel Management may contract with qualified carriers offering plans described by section 8903 or 8903a of this title, without regard to section 6101(b) to (d) of title 41 or other statute requiring competitive bidding. Each contract shall be for a uniform term of at least 1 year, but may be made automatically renewable from term to term in the absence of notice of termination by either party.

(b)

To be eligible as a carrier for the plan described by section 8903(2) of this title, a company must be licensed to issue group health insurance in all the States and the District of Columbia.

(c)A contract for a plan described by section 8903(1) or (2) of this title shall require the carrier—

(1)

to reinsure with other companies which elect to participate, under an equitable formula based on the total amount of their group health insurance benefit payments in the United States during the latest year for which the information is available, to be determined by the carrier and approved by the Office; or

(2)

to allocate its rights and obligations under the contract among its affiliates which elect to participate, under an equitable formula to be determined by the carrier and the affiliates and approved by the Office.

(d)

Each contract under this chapter shall contain a detailed statement of benefits offered and shall include such maximums, limitations, exclusions, and other definitions of benefits as the Office considers necessary or desirable.

(e)

The Office may prescribe reasonable minimum standards for health benefits plans described by section 8903 or 8903a of this title and for carriers offering the plans. Approval of a plan may be withdrawn only after notice and opportunity for hearing to the carrier concerned without regard to subchapter II of chapter 5 and chapter 7 of this title. The Office may terminate the contract of a carrier effective at the end of the contract term, if the Office finds that at no time during the preceding two contract terms did the carrier have 300 or more employees and annuitants, exclusive of family members, enrolled in the plan.

(f)

A contract may not be made or a plan approved which excludes an individual because of race, sex, health status, or, at the time of the first opportunity to enroll, because of age.

(g)

A contract may not be made or a plan approved which does not offer to each employee, annuitant, family member, former spouse, or person having continued coverage under section 8905a of this title whose enrollment in the plan is ended, except by a cancellation of enrollment, a temporary extension of coverage during which he may exercise the option to convert, without evidence of good health, to a nongroup contract providing health benefits. An employee,annuitant, family member, former spouse, or person having continued coverage under section 8905a of this title who exercises this option shall pay the full periodic charges of the nongroup contract.

(h)

The benefits and coverage made available under subsection (g) of this section are noncancelable by the carrier except for fraud, over-insurance, or nonpayment of periodic charges.

(i)

Rates charged under health benefits plans described by section 8903 or 8903a of this title shall reasonably and equitably reflect the cost of the benefits provided. Rates under health benefits plans described by section 8903(1) and (2) of this title shall be determined on a basis which, in the judgment of the Office, is consistent with the lowest schedule of basic rates generally charged for new group health benefit plans issued to large employers. The rates determined for the first contract term shall be continued for later contract terms, except that they may be readjusted for any later term, based on past experience and benefit adjustments under the later contract. Any readjustment in rates shall be made in advance of the contract term in which they will apply and on a basis which, in the judgment of the Office, is consistent with the general practice of carriers which issue group health benefit plans to large employers.

(j)

Each contract under this chapter shall require the carrier to agree to pay for or provide a health service or supply in an individual case if the Office finds that the employee, annuitant, family member, former spouse, or person having continued coverage under section 8905a of this title is entitled thereto under the terms of the contract.

(k)

(1)

When a contract under this chapter requires payment or reimbursement for services which may be performed by a clinical psychologist, optometrist, nurse midwife, nursing school administered clinic, or nurse practitioner/clinical specialist, licensed or certified as such under Federal or State law, as applicable, or by a qualified clinical social worker as defined in section 8901(11), an employee, annuitant, family member, former spouse, or person having continued coverage under section 8905a of this title covered by the contract shall be free to select, and shall have direct access to, such a clinical psychologist, qualified clinical social worker, optometrist, nurse midwife, nursing school administered clinic, or nurse practitioner/nurse clinical specialist without supervision or referral by another health practitioner and shall be entitled under the contract to have payment or reimbursement made to him or on his behalf for the services performed.

(2)

Nothing in this subsection shall be considered to preclude a health benefits plan from providing direct access or direct payment or reimbursement to a provider in a health care practice or profession other than a practice or profession listed in paragraph (1), if such provider is licensed or certified as such under Federal or State law.

(3)

The provisions of this subsection shall not apply to comprehensive medical plans as described in section 8903(4) of this title.

(l)

The Office shall contract under this chapter for a plan described in section 8903(4) of this title with any qualified health maintenance carrier which offers such a plan. For the purpose of this subsection, “qualified health maintenance carrier” means any qualified carrier which is a qualified health maintenance organization within the meaning of section 1310(d)(1) [1] of title XIII of the Public Health Service Act (42 U.S.C. 300c–9(d)).

(m)

(1)

The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.

(2)

(A)

Notwithstanding the provisions of paragraph (1) of this subsection, if a contract under this chapter provides for the provision of, the payment for, or the reimbursement of the cost of health services for the care and treatment of any particular health condition, the carrier shall provide, pay, or reimburse up to the limits of its contract for any such health service properly provided by any person licensed under State law to provide such service if such service is provided to an individual covered by such contract in a State where 25 percent or more of the population is located in primary medical care manpower shortage areas designated pursuant to section 332 of the Public Health Service Act (42 U.S.C. 254e).

(B)

The provisions of subparagraph (A) shall not apply to contracts entered into providing prepayment plans described in section 8903(4) of this title.

(n)A contract for a plan described by section 8903(1), (2), or (3), or section 8903a, shall require the carrier—

(1)to implement hospitalization-cost-containment measures, such as measures—

(A)

for verifying the medical necessity of any proposed treatment or surgery;

(B)

for determining the feasibility or appropriateness of providing services on an outpatient rather than on an inpatient basis;

(C)

for determining the appropriate length of stay (through concurrent review or otherwise) in cases involving inpatient care; and

(D)

involving case management, if the circumstances so warrant; and

(2)

to establish incentives to encourage compliance with measures under paragraph (1).

(o)

A contract may not be made or a plan approved which includes coverage for any benefit, item, or service for which funds may not be used under the Assisted Suicide Funding Restriction Act of 1997.

(p)

Each contract under this chapter shall require the carrier to comply with requirements described in the provisions of sections 2799A–1, 2799A–2, and 2799A–7 of the Public Health Service Act, sections 716, 717, and 722 of the Employee Retirement Income Security Act of 1974, and sections 9816, 9817, and 9822 of the Internal Revenue Code of 1986 (as applicable) in the same manner as such provisions apply to a group health plan or health insurance issuer offering group or individual health insurance coverage, as described in such sections. The provisions of sections 2799B–1, 2799B–2, 2799B–3, and 2799B–5 of the Public Health Service Act shall apply to a health care provider and facility and an air ambulance provider described in such respective sections with respect to an enrollee in a health benefits plan under this chapter in the same manner as such provisions apply to such a provider and facility with respect to an enrollee in a group health plan or group or individual health insurance coverage offered by a health insurance issuer, as described in such sections.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 601; Pub. L. 93–246, § 3, Jan. 31, 1974, 88 Stat. 4; Pub. L. 93–363, § 1, July 30, 1974, 88 Stat. 398; Pub. L. 94–183, § 2(43), Dec. 31, 1975, 89 Stat. 1059; Pub. L. 94–460, title I, § 110(b), Oct. 8, 1976, 90 Stat. 1952; Pub. L. 95–368, § 1, Sept. 17, 1978, 92 Stat. 606; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–179, § 3, Jan. 2, 1980, 93 Stat. 1299; Pub. L. 98–615, § 3(2), Nov. 8, 1984, 98 Stat. 3203; Pub. L. 99–53, § 2(a), June 17, 1985, 99 Stat. 94; Pub. L. 99–251, title I, §§ 105(b), 106(a)(3), Feb. 27, 1986, 100 Stat. 15, 16; Pub. L. 100–202, § 101(m) [title VI, § 626], Dec. 22, 1987, 101 Stat. 1329–390, 1329–430; Pub. L. 100–654, title II, §§ 201(b), 202(a), Nov. 14, 1988, 102 Stat. 3845; Pub. L. 101–508, title VII, § 7002(a), Nov. 5, 1990, 104 Stat. 1388–329; Pub. L. 101–509, title IV, § 1, Nov. 5, 1990, 104 Stat. 1421; Pub. L. 102–393, title V, § 537(a), (b), Oct. 6, 1992, 106 Stat. 1765; Pub. L. 105–12, § 9(g), Apr. 30, 1997, 111 Stat. 27; Pub. L. 105–266, §§ 3(c), 8, Oct. 19, 1998, 112 Stat. 2366, 2370; Pub. L. 111–350, § 5(a)(15), Jan. 4, 2011, 124 Stat. 3842; Pub. L. 116–260, div. BB, title I, § 102(d)(1), Dec. 27, 2020, 134 Stat. 2797.)

5 - 4 - 7 - 6 - 3 Debarment and other sanctions

(a)

(1)For the purpose of this section—

(A)

the term “provider of health care services or supplies” or “provider”means a physician, hospital, or other individual or entity which furnishes health care services or supplies;

(B)

the term “individual covered under this chapter” or “covered individual” means an employee, annuitant, family member, or former spouse covered by a health benefits plan described by section 8903 or 8903a;

(C)an individual or entity shall be considered to have been “convicted” of a criminal offense if—

(i)

a judgment of conviction for such offense has been entered against the individual or entity by a Federal, State, or local court;

(ii)

there has been a finding of guilt against the individual or entity by a Federal, State, or local court with respect to such offense;

(iii)

a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court with respect to such offense; or

(iv)

in the case of an individual, the individual has entered a first offender or other program pursuant to which a judgment of conviction for such offense has been withheld;

without regard to the pendency or outcome of any appeal (other than a judgment of acquittal based on innocence) or request for relief on behalf of the individual or entity; and

(D)

the term “should know” means that a person, with respect to information, acts in deliberate ignorance of, or in reckless disregard of, the truth or falsity of the information, and no proof of specific intent to defraud is required; [1]

(2)

(A)

Notwithstanding section 8902(j) or any other provision of this chapter, if, under subsection (b), (c), or (d) a provider is barred from participating in the program under this chapter, no payment may be made by a carrier pursuant to any contract under this chapter (either to such provider or by reimbursement) for any service or supply furnished by such provider during the period of the debarment.

(B)

Each contract under this chapter shall contain such provisions as may be necessary to carry out subparagraph (A) and the other provisions of this section.

(b)The Office of Personnel Management shall bar the following providers of health care services or supplies from participating in the program under this chapter:

(1)

Any provider that has been convicted, under Federal or State law, of a criminal offense relating to fraud, corruption, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care service or supply.

(2)

Any provider that has been convicted, under Federal or State law, of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a health care service or supply.

(3)

Any provider that has been convicted, under Federal or State law, in connection with the interference with or obstruction of an investigation or prosecution of a criminal offense described in paragraph (1) or (2).

(4)

Any provider that has been convicted, under Federal or State law, of a criminal offense relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

(5)

Any provider that is currently debarred, suspended, or otherwise excluded from any procurement or nonprocurement activity (within the meaning of section 2455 of the Federal Acquisition Streamlining Act of 1994).

(c)The Office may bar the following providers of health care services from participating in the program under this chapter:

(1)Any provider—

(A)

whose license to provide health care services or supplies has been revoked, suspended, restricted, or not renewed, by a State licensing authority for reasons relating to the provider’s professional competence, professional performance, or financial integrity; or

(B)

that surrendered such a license while a formal disciplinary proceeding was pending before such an authority, if the proceeding concerned the provider’s professional competence, professional performance, or financial integrity.

(2)

Any provider that is an entity directly or indirectly owned, or with a control interest of 5 percent or more held, by an individual who has been convicted of any offense described in subsection (b), against whom a civil monetary penalty has been assessed under subsection (d), or who has been debarred from participation under this chapter.

(3)

Any individual who directly or indirectly owns or has a control interest in a sanctioned entity and who knows or should know of the action constituting the basis for the entity’s conviction of any offense described in subsection (b), assessment with a civil monetary penalty under subsection (d), or debarment from participation under this chapter.

(4)

Any provider that the Office determines, in connection with claims presented under this chapter, has charged for health care services or supplies in an amount substantially in excess of such provider’s customary charge for such services or supplies (unless the Office finds there is good cause for such charge), or charged for health care services or supplies which are substantially in excess of the needs of the covered individual or which are of a quality that fails to meet professionally recognized standards for such services or supplies.

(5)

Any provider that the Office determines has committed acts described in subsection (d).

Any determination under paragraph (4) relating to whether a charge for health care services or supplies is substantially in excess of the needs of the covered individual shall be made by trained reviewers based on written medical protocols developed by physicians. In the event such a determination cannot be made based on such protocols, a physician in an appropriate specialty shall be consulted.

(d)Whenever the Office determines—

(1)in connection with claims presented under this chapter, that a providerhas charged for a health care service or supply which the provider knows or should have known involves—

(A)

an item or service not provided as claimed;

(B)

charges in violation of applicable charge limitations under section 8904(b); or

(C)

an item or service furnished during a period in which the provider was debarred from participation under this chapter pursuant to a determination by the Office under this section, other than as permitted under subsection (g)(2)(B);

(2)

that a provider of health care services or supplies has knowingly made, or caused to be made, any false statement or misrepresentation of a material fact which is reflected in a claim presented under this chapter; or

(3)

that a provider of health care services or supplies has knowingly failed to provide any information required by a carrier or by the Office to determine whether a payment or reimbursement is payable under this chapter or the amount of any such payment or reimbursement;

the Office may, in addition to any other penalties that may be prescribed by law, and after consultation with the Attorney General, impose a civil monetary penalty of not more than $10,000 for any item or service involved. In addition, such a provider shall be subject to an assessment of not more than twice the amount claimed for each such item or service. In addition, the Office may make a determination in the same proceeding to bar such provider from participating in the program under this chapter.

(e)The Office—

(1)

may not initiate any debarment proceeding against a provider, based on such provider’s having been convicted of a criminal offense, later than 6 years after the date on which such provider is so convicted; and

(2)

may not initiate any action relating to a civil penalty, assessment, or debarment under this section, in connection with any claim, later than 6 years after the date the claim is presented, as determined under regulations prescribed by the Office.

(f)In making a determination relating to the appropriateness of imposing or the period of any debarment under this section (where such debarment is not mandatory), or the appropriateness of imposing or the amount of any civil penalty or assessment under this section, the Office shall take into account—

(1)

the nature of any claims involved and the circumstances under which they were presented;

(2)

the degree of culpability, history of prior offenses or improper conduct of the provider involved; and

(3)

such other matters as justice may require.

(g)

(1)

(A)

Except as provided in subparagraph (B), debarment of a providerunder subsection (b) or (c) shall be effective at such time and upon such reasonable notice to such provider, and to carriers and covered individuals, as shall be specified in regulations prescribed by the Office. Any such provider that is debarred from participation may request a hearing in accordance with subsection (h)(1).

(B)

Unless the Office determines that the health or safety of individuals receiving health care services warrants an earlier effective date, the Office shall not make a determination adverse to a provider under subsection (c)(5) or (d) until such provider has been given reasonable notice and an opportunity for the determination to be made after a hearing as provided in accordance with subsection (h)(1).

(2)

(A)

Except as provided in subparagraph (B), a debarment shall be effective with respect to any health care services or supplies furnished by a provider on or after the effective date of such provider’s debarment.

(B)

A debarment shall not apply with respect to inpatient institutional services furnished to an individual who was admitted to the institution before the date the debarment would otherwise become effective until the passage of 30 days after such date, unless the Office determines that the health or safety of the individual receiving those services warrants that a shorter period, or that no such period, be afforded.

(3)

Any notice of debarment referred to in paragraph (1) shall specify the date as of which debarment becomes effective and the minimum period of time for which such debarment is to remain effective. In the case of a debarment under paragraph (1), (2), (3), or (4) of subsection (b), the minimum period of debarment shall not be less than 3 years, except as provided in paragraph (4)(B)(ii).

(4)

(A)

A provider barred from participating in the program under this chapter may, after the expiration of the minimum period of debarment referred to in paragraph (3), apply to the Office, in such manner as the Office may by regulation prescribe, for termination of the debarment.

(B)The Office may—

(i)terminate the debarment of a provider, pursuant to an application filed by such provider after the end of the minimum debarment period, if the Office determines, based on the conduct of the applicant, that—

(I)

there is no basis under subsection (b), (c), or (d) for continuing the debarment; and

(II)

there are reasonable assurances that the types of actions which formed the basis for the original debarment have not recurred and will not recur; or

(ii)notwithstanding any provision of subparagraph (A), terminate the debarment of a provider, pursuant to an application filed by such provider before the end of the minimum debarment period, if the Office determines that—

(I)

based on the conduct of the applicant, the requirements of subclauses (I) and (II) of clause (i) have been met; and

(II)

early termination under this clause is warranted based on the fact that the provider is the sole community provider or the sole source of essential specialized services in a community, or other similar circumstances.

(5)The Office shall—

(A)

promptly notify the appropriate State or local agency or authority having responsibility for the licensing or certification of a provider barred from participation in the program under this chapter of the fact of the debarment, as well as the reasons for such debarment;

(B)

request that appropriate investigations be made and sanctions invoked in accordance with applicable law and policy; and

(C)

request that the State or local agency or authority keep the Office fully and currently informed with respect to any actions taken in response to the request.

(h)

(1)

Any provider of health care services or supplies that is the subject of an adverse determination by the Office under this section shall be entitled to reasonable notice and an opportunity to request a hearing of record, and to judicial review as provided in this subsection after the Office renders a final decision. The Office shall grant a request for a hearing upon a showing that due process rights have not previously been afforded with respect to any finding of fact which is relied upon as a cause for an adverse determination under this section. Such hearing shall be conducted without regard to subchapter II of chapter 5 and chapter 7 of this title by a hearing officer who shall be designated by the Director of the Office and who shall not otherwise have been involved in the adverse determination being appealed. A request for a hearing under this subsection shall be filed within such period and in accordance with such procedures as the Office shall prescribe by regulation.

(2)

Any provider adversely affected by a final decision under paragraph (1) made after a hearing to which such provider was a party may seek review of such decision in the United States District Court for the District of Columbia or for the district in which the plaintiff resides or has his or her principal place of business by filing a notice of appeal in such court within 60 days after the date the decision is issued, and by simultaneously sending copies of such notice by certified mail to the Director of the Office and to the Attorney General. In answer to the appeal, the Director of the Office shall promptly file in such court a certified copy of the transcript of the record, if the Office conducted a hearing, and other evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and evidence of record, a judgment affirming, modifying, or setting aside, in whole or in part, the decision of the Office, with or without remanding the case for a rehearing. The district court shall not set aside or remand the decision of the Office unless there is not substantial evidence on the record, taken as whole, to support the findings by the Office of a cause for action under this section or unless action taken by the Office constitutes an abuse of discretion.

(3)

Matters that were raised or that could have been raised in a hearing under paragraph (1) or an appeal under paragraph (2) may not be raised as a defense to a civil action by the United States to collect a penalty or assessment imposed under this section.

(i)

A civil action to recover civil monetary penalties or assessments under subsection (d) shall be brought by the Attorney General in the name of the United States, and may be brought in the United States district court for the district where the claim involved was presented or where the person subject to the penalty resides. Amounts recovered under this section shall be paid to the Office for deposit into the Employees Health Benefits Fund. The amount of a penalty or assessment as finally determined by the Office, or other amount the Office may agree to in compromise, may be deducted from any sum then or later owing by the United States to the party against whom the penalty or assessment has been levied.

(j)

The Office shall prescribe regulations under which, with respect to services or supplies furnished by a debarred provider to a covered individual during the period of such provider’s debarment, payment or reimbursement under this chapter may be made, notwithstanding the fact of such debarment, if such individual did not know or could not reasonably be expected to have known of the debarment. In any such instance, the carrier involved shall take appropriate measures to ensure that the individual is informed of the debarment and the minimum period of time remaining under the terms of the debarment.

(Added Pub. L. 100–654, title I, § 101(a), Nov. 14, 1988, 102 Stat. 3837; amended Pub. L. 105–266, § 2(a), Oct. 19, 1998, 112 Stat. 2363.)

5 - 4 - 7 - 6 - 4 Health benefits plans

The Office of Personnel Management may contract for or approve the followinghealth benefits plans:

(1)Service Benefit Plan.—

One Government-wide plan, which may be underwritten by participating affiliates licensed in any number of States, offering at least 2 levels of benefits forenrollees under this chapter generally and at least 2 levels of benefits forenrollees under the Postal Service Health Benefits Program established under section 8903c, under which payment is made by a carrier under contracts with physicians, hospitals, or other providers of health services for benefits of the types described by section 8904(1) of this title given to employees, annuitants,members of their families, former spouses, or persons having continued coverage under section 8905a of this title, or, under certain conditions, payment is made by a carrier to the employee, annuitant, family member, former spouse,or person having continued coverage under section 8905a of this title.

(2)Indemnity Benefit Plan.—

One Government-wide plan, offering two levels of benefits, under which a carrier agrees to pay certain sums of money, not in excess of the actual expenses incurred, for benefits of the types described by section 8904(2) of this title.

(3)Employee Organization Plans.—

Employee organization plans which offer benefits of the types referred to by section 8904(3) of this title, which are sponsored or underwritten, and are administered, in whole or substantial part, by employee organizations described in section 8901(8)(A) of this title, which are available only to individuals, and members of their families, who at the time of enrollment are members of the organization.

(4)Comprehensive Medical Plans.—

(A)Group-practice prepayment plans.—

Group-practice prepayment plans which offer health benefits of the types referred to by section 8904(4) of this title, in whole or in substantial part on a prepaid basis, with professional services thereunder provided by physicians practicing as a group in a common center or centers. The group shall include at least 3 physicians who receive all or a substantial part of their professional income from the prepaid funds and who represent 1 or more medical specialties appropriate and necessary for the population proposed to be served by the plan.

(B)Individual-practice prepayment plans.—

Individual-practice prepayment plans which offer health services in whole or substantial part on a prepaid basis, with professional services thereunder provided by individual physicians who agree, under certain conditions approved by the Office, to accept the payments provided by the plans as full payment for covered services given by them including, in addition to in-hospital services, general care given in their offices and the patients’ homes, out-of-hospital diagnostic procedures, and preventive care, and which plans are offered by organizations which have successfully operated similar plans before approval by the Office of the plan in which employees may enroll.

(C)Mixed model prepayment plans.—

Mixed model prepayment plans which are a combination of the type of plans described in subparagraph (A) and the type of plans described in subparagraph (B).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 602; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 98–615, § 3(3), Nov. 8, 1984, 98 Stat. 3203; Pub. L. 99–53, § 2(b), June 17, 1985, 99 Stat. 94; Pub. L. 99–251, title I, §§ 102, 111, Feb. 27, 1986, 100 Stat. 14, 19; Pub. L. 100–654, title II, § 202(b), Nov. 14, 1988, 102 Stat. 3845; Pub. L. 105–266, § 3(b), Oct. 19, 1998, 112 Stat. 2366; Pub. L. 117–108, title I, § 101(a)(2)(A), Apr. 6, 2022, 136 Stat. 1135.)

5 - 4 - 7 - 6 - 5 Additional health benefits plans

(a)

In addition to any plan under section 8903 of this title, the Office of Personnel Management may contract for or approve one or more health benefits plans under this section.

(b)A plan under this section may not be contracted for or approved unless it—

(1)

is sponsored or underwritten, and administered, in whole or substantial part, by an employee organization described in section 8901(8)(B) of this title;

(2)

offers benefits of the types named by paragraph (1) or (2) of section 8904 of this title or both;

(3)

provides for benefits only by paying for, or providing reimbursement for, the cost of such benefits (as provided for under paragraph (1) or (2) of section 8903 of this title) or a combination thereof; and

(4)

is available only to individuals who, at the time of enrollment, are full members of the organization and to members of their families.

(c)A contract for a plan approved under this section shall require the carrier—

(1)

to enter into an agreement approved by the Office with an underwriting subcontractor licensed to issue group health insurance in all the States and the District of Columbia; or

(2)

to demonstrate ability to meet reasonable minimum financial standards prescribed by the Office.

(d)

For the purpose of this section, an individual shall be considered a full member of an organization if such individual is eligible to exercise all rights and privileges incident to full membership in such organization (determined without regard to the right to hold elected office).

(Added Pub. L. 99–53, § 1(b)(1), June 17, 1985, 99 Stat. 93.)

5 - 4 - 7 - 6 - 6 Authority to readmit an employee organization plan

(a)

In the event that a plan described by section 8903(3) or 8903a is discontinued under this chapter (other than in the circumstance described in section 8909(d)), that discontinuation shall be disregarded, for purposes of any determination as to that plan’s eligibility to be considered an approved plan under this chapter, but only for purposes of any contract year later than the third contract year beginning after such plan is so discontinued.

(b)A contract for a plan approved under this section shall require the carrier—

(1)

to demonstrate experience in service delivery within a managed care system (including provider networks) throughout the United States; and

(2)

if the carrier involved would not otherwise be subject to the requirement set forth in section 8903a(c)(1), to satisfy such requirement.

(Added Pub. L. 105–266, § 6(a)(1), Oct. 19, 1998, 112 Stat. 2368.)

Authority to readmit an employee organization plan

(a)

(b)A contract for a plan approved under this section shall require the carrier—

(1)

to demonstrate experience in service delivery within a managed care system (including provider networks) throughout the United States; and

(2)

if the carrier involved would not otherwise be subject to the requirement set forth in section 8903a(c)(1), to satisfy such requirement.

(Added Pub. L. 105–266, § 6(a)(1), Oct. 19, 1998, 112 Stat. 2368.)

5 - 4 - 7 - 6 - 7 Types of benefits

(a)The benefits to be provided under plans described by section 8903 of this title may be of the following types:

(1)Service Benefit Plan.—

(A)

Hospital benefits.

(B)

Surgical benefits.

(C)

In-hospital medical benefits.

(D)

Ambulatory patient benefits.

(E)

Supplemental benefits.

(F)

Obstetrical benefits.

(2)Indemnity Benefit Plan.—

(A)

Hospital care.

(B)

Surgical care and treatment.

(C)

Medical care and treatment.

(D)

Obstetrical benefits.

(E)

Prescribed drugs, medicines, and prosthetic devices.

(F)

Other medical supplies and services.

(3)Employee Organization Plans.—

Benefits of the types named under paragraph (1) or (2) of this subsection or both.

(4)Comprehensive Medical Plans.—

Benefits of the types named under paragraph (1) or (2) of this subsection or both.

All plans contracted for under paragraphs (1) and (2) of this subsection shall include benefits both for costs associated with care in a general hospital and for other health services of a catastrophic nature.

(b)

(1)

(A)

A plan, other than a prepayment plan described in section 8903(4) of this title, may not provide benefits, in the case of any retired enrolled individual who is age 65 or older and is not covered to receive Medicarehospital and insurance benefits under part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et seq.), to pay a charge imposed by any health care provider, for inpatient hospital services which are covered for purposes of benefit payments under this chapter and part A of title XVIII of the Social Security Act, to the extent that such charge exceeds applicable limitations on hospital charges established for Medicarepurposes under section 1886 of the Social Security Act (42 U.S.C. 1395ww). Hospital providers who have in force participation agreements with the Secretary of Health and Human Services consistent with sections 1814(a) and 1866 of the Social Security Act (42 U.S.C. 1395f(a)and 1395cc), whereby the participating provider accepts Medicarebenefits as full payment for covered items and services after applicable patient copayments under section 1813 of such Act (42 U.S.C. 1395e) have been satisfied, shall accept equivalent benefit payments andenrollee copayments under this chapter as full payment for services described in the preceding sentence. The Office of Personnel Management shall notify the Secretary of Health and Human Services if a hospital is found to knowingly and willfully violate this subsection on a repeated basis and the Secretary may invoke appropriate sanctions in accordance with section 1866(b)(2) of the Social Security Act (42 U.S.C. 1395cc(b)(2)) and applicable regulations.

(B)

(i)

A plan, other than a prepayment plan described in section 8903(4), may not provide benefits, in the case of any retired enrolled individual who is age 65 or older and is not entitled to Medicaresupplementary medical insurance benefits under part B of title XVIII of the Social Security Act (42 U.S.C. 1395j et seq.), to pay a charge imposed for physicians’ services (as defined in section 1848(j) of such Act, 42 U.S.C. 1395w–4(j)) which are covered for purposes of benefit payments under this chapter and under such part, to the extent that such charge exceeds the fee schedule amount under section 1848(a) of such Act (42 U.S.C. 1395w–4(a)).

(ii)

Physicians and suppliers who have in force participation agreements with the Secretary of Health and Human Services consistent with section 1842(h)(1) of such Act (42 U.S.C. 1395u(h)(1)), whereby the participating provider accepts Medicare benefits (including allowable deductible and coinsurance amounts) as full payment for covered items and services shall accept equivalent benefit and enrollee cost-sharing under this chapter as full payment for services described in clause (i). Physicians and suppliers who are nonparticipating physicians and suppliers for purposes of part B of title XVIII of such Act shall not impose charges that exceed the limiting charge under section 1848(g) of such Act (42 U.S.C. 1395w–4(g)) with respect to services described in clause (i) provided toenrollees described in such clause. The Office of Personnel Management shall notify a physician or supplier who is found to have violated this clause and inform them of the requirements of this clause and sanctions for such a violation. The Office of Personnel Management shall notify the Secretary of Health and Human Services if a physician or supplier is found to knowingly and willfully violate this clause on a repeated basis and the Secretary of Health and Human Services may invoke appropriate sanctions in accordance with sections 1128A(a) and 1848(g)(1) of such Act (42 U.S.C. 1320a–7a(a), 1395w–4(g)(1)) and applicable regulations.

(C)

If the Secretary of Health and Human Services determines that a violation of this subsection warrants excluding a provider from participation for a specified period under title XVIII of the Social Security Act, the Office shall enforce a corresponding exclusion of such provider for purposes of this chapter.

(2)

Notwithstanding any other provision of law, the Secretary of Health and Human Services and the Director of the Office of Personnel Management, and their agents, shall exchange any information necessary to implement this subsection.

(3)

(A)

Not later than December 1, 1991, and periodically thereafter, the Secretary of Health and Human Services (in consultation with the Director of the Office of Personnel Management) shall supply to carriers of plans described in paragraphs (1) through (3) of section 8903 the Medicare program information necessary for them to comply with paragraph (1).

(B)

For purposes of this paragraph, the term “Medicare program information” includes (i) the limitations on hospital charges established for Medicare purposes under section 1886 of the Social Security Act (42 U.S.C. 1395ww) and the identity of hospitals which have in force agreements with the Secretary of Health and Human Services consistent with section 1814(a) and 1866 of the Social Security Act (42 U.S.C. 1395f(a) and 1395cc), and (ii) the fee schedule amounts and limiting charges for physicians’ services established under section 1848 of such Act (42 U.S.C. 1395w–4) and the identity of participating physicians and suppliers who have in force agreements with such Secretary under section 1842(h) of such Act (42 U.S.C. 1395u(h)).

(4)The Director of the Office of Personnel Management shall enter into an arrangement with the Secretary of Health and Human Services, to be effective before the first day of the fifth month that begins before each contract year, under which—

(A)

physicians and suppliers (whether or not participating) under the Medicare program will be notified of the requirements of paragraph (1)(B);

(B)

enforcement procedures will be in place to carry out such paragraph (including enforcement of protections against overcharging of beneficiaries); and

(C)

Medicare program information described in paragraph (3)(B)(ii) will be supplied to carriers under paragraph (3)(A).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 603; Pub. L. 101–508, title VII, § 7002(f)(1), Nov. 5, 1990, 104 Stat. 1388–330; Pub. L. 102–378, § 2(76), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 103–66, title XI, § 11003(a), Aug. 10, 1993, 107 Stat. 409.)

5 - 4 - 7 - 6 - 8 Election of coverage

(a)An employee may enroll in an approved health benefits plan described in section 8903 or 8903a—

(1)

as an individual;

(2)

for self plus one; or

(3)

for self and family.

(b)An annuitant who at the time he becomes an annuitant was enrolled in a health benefits plan under this chapter—

(1)as an employee for a period of not less than—

(A)

the 5 years of service immediately before retirement;

(B)

the full period or periods of service between the last day of the first period, as prescribed by regulations of the Office of Personnel Management, in which he is eligible to enroll in the plan and the date on which he becomes an annuitant; or

(C)

the full period or periods of service beginning with the enrollment which became effective before January 1, 1965, and ending with the date on which he becomes an annuitant;

whichever is shortest; or

(2)

as a member of the family of an employee or annuitant;

may continue his enrollment under the conditions of eligibility prescribed by regulations of the Office. The Office may, in its sole discretion, waive the requirements of this subsection in the case of an individual who fails to satisfy such requirements if the Office determines that, due to exceptional circumstances, it would be against equity and good conscience not to allow such individual to be enrolled as an annuitant in a health benefits planunder this chapter [1]

(c)

(1)A former spouse may—

(A)

within 60 days after the dissolution of the marriage, or

(B)

in the case of a former spouse of a former employee whose marriage was dissolved after the employee’s retirement, within 60 days after the dissolution of the marriage or, if later, within 60 days after an election is made under section 8339(j)(3) or 8417(b) of this title for such former spouse by the retired employee,

enroll in an approved health benefits plan described by section 8903 or 8903a of this title as an individual or for [2] for self plus one or self and family as provided in paragraph (2) of this subsection, subject to agreement to pay the full subscription charge of the enrollment, including the amounts determined by the Office to be necessary for administration and reserves pursuant to section 8909(b) of this title. The former spouse shall submit an enrollment application and make premium payments to the agency which, at the time of divorce or annulment, employed the employee to whom the former spouse was married or, in the case of a former spouse who is receiving annuity payments under section 8341(h), 8345(j), 8445, or 8467 of this title, to the Office of Personnel Management.

(2)Coverage for self plus one or for self and family under this subsection shall be limited to—

(A)

the former spouse; and

(B)unmarried dependent natural or adopted children (or, in the case of self plus one coverage, not more than 1 such child) of the former spouseand the employee who are—

(i)

under 22 years of age; or

(ii)

incapable of self-support because of mental or physical disability which existed before age 22.

(d)

An individual whom the Secretary of Defense determines is an eligible beneficiary under subsection (b) of section 1108 of title 10 may enroll, as part of the demonstration project under such section, in a health benefits plan under this chapter in accordance with the agreement under subsection (a) of such section between the Secretary and the Office and applicable regulations under this chapter.

(e)

If an employee, annuitant, or other individual eligible to enroll in a health benefits plan under this chapter has a spouse who is also eligible to enroll, either spouse, but not both, may enroll for self and family, or for a self plus one enrollment that covers the spouse, or each spouse may enroll as an individual or for a self plus one enrollment that does not cover the other spouse or a child who is covered under the enrollment of the other spouse. However, an individual may not be enrolled both as an employee, annuitant, or other individual eligible to enroll and as a member of the family.

(f)

An employee, annuitant, former spouse, or person having continued coverage under section 8905a of this title enrolled in a health benefits plan under this chapter may change his coverage or that of himself and members of his family by an application filed within 60 days after a change in family status or at other times and under conditions prescribed by regulations of the Office.

(g)

(1)Under regulations prescribed by the Office, the Office shall, before the start of any contract term in which—

(A)

an adjustment is made in any of the rates charged or benefits provided under a health benefits plan described by section 8903 or 8903a of this title,

(B)

a newly approved health benefits plan is offered, or

(C)

an existing plan is terminated,

provide a period of not less than 3 weeks during which any employee, annuitant, former spouse, or person having continued coverage under section 8905a of this title enrolled in a health benefits plan described by such section shall be permitted to transfer that individual’s enrollment to another such plan or to cancel such enrollment.

(2)

In addition to any opportunity afforded under paragraph (1) of this subsection, an employee, annuitant, former spouse, or person having continued coverage under section 8905a of this title enrolled in a health benefits plan under this chapter shall be permitted to transfer that individual’s enrollment to another such plan, or to cancel such enrollment, at such other times and subject to such conditions as the Office may prescribe in regulations.

(3)

(A)

In addition to any informational requirements otherwise applicable under this chapter, the regulations shall include provisions to ensure that each employee eligible to enroll in a health benefits plan under this chapter (whether actually enrolled or not) is notified in writing as to the rights afforded under section 8905a of this title.

(B)

Notification under this paragraph shall be provided by employing agencies at an appropriate point in time before each period under paragraph (1) so that employees may be aware of their rights under section 8905a of this title when making enrollment decisions during such period.

(h)

(1)

An unenrolled employee who is required by a court or administrative order to provide health insurance coverage for 1 or more children who meets the requirements of section 8901(5) may enroll for self plus one or self and family coverage, as necessary to provide health insurance coverage for each child who is covered under the order, in a health benefits plan under this chapter. If such employee fails to enroll for self plus one or self and family coverage, as necessary to provide health insurance coverage for each child who is covered under the order, in a health benefits plan that provides full benefits and services in the location in which the child or children reside, and the employee does not provide documentation showing that such coverage has been provided through other health insurance, the employing agency shall enroll the employee in a self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, in the option which provides the lower level of coverage under the Service Benefit Plan.

(2)

An employee who is enrolled as an individual in a health benefits planunder this chapter and who is required by a court or administrative order to provide health insurance coverage for 1 or more children who meets the requirements of section 8901(5) may change to a self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, in the same or another health benefits plan under this chapter. If such employee fails to change to a self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, and theemployee does not provide documentation showing that such coverage has been provided through other health insurance, the employing agency shall change the enrollment of the employee to a self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, in the plan in which the employee is enrolled if that plan provides full benefits and services in the location where the child or children reside. If the plan in which the employee is enrolled does not provide full benefits and services in the location in which the child or children reside, or, if the employee fails to change to a self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, in a plan that provides full benefits and services in the location where the child or children reside, the employing agency shall change the coverage of the employee to a self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, in the option which provides the lower level of coverage under the Service Benefits Plan.

(3)

The employee may not discontinue the self plus one or self and family enrollment, as necessary to provide health insurance coverage for each child who is covered under the order, in a plan that provides full benefits and services in the location in which the child or children reside for so long as the court or administrative order remains in effect and the child or children continue to meet the requirements of section 8901(5), unless the employeeprovides documentation showing that such coverage has been provided through other health insurance.

(i)

Any services by an officer or employee under this chapter relating to enrolling individuals in a health benefits plan under this chapter, or changing the enrollment of an individual already so enrolled, shall be deemed, for purposes of section 1342 of title 31, services for emergencies involving the safety of human life or the protection of property.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 603; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 98–615, § 3(4), Nov. 8, 1984, 98 Stat. 3203; Pub. L. 99–53, § 2(a), (c), June 17, 1985, 99 Stat. 94; Pub. L. 99–251, title I, §§ 103, 104(a), Feb. 27, 1986, 100 Stat. 14; Pub. L. 99–335, title II, § 207(m), June 6, 1986, 100 Stat. 598; Pub. L. 100–654, title II, §§ 201(c), (d), 202(c), Nov. 14, 1988, 102 Stat. 3845; Pub. L. 102–378, § 2(77), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 105–261, div. A, title VII, § 721(b)(1), Oct. 17, 1998, 112 Stat. 2065; Pub. L. 106–394, § 2, Oct. 30, 2000, 114 Stat. 1629; Pub. L. 113–67, div. A, title VII, § 706(a), Dec. 26, 2013, 127 Stat. 1193; Pub. L. 116–92, div. A, title XI, § 1110(a), Dec. 20, 2019, 133 Stat. 1600.)

5 - 4 - 7 - 6 - 9 Continued coverage

(a)

Any individual described in subsection (b) may elect to continue coverage under this chapter in accordance with the provisions of this section.

(b)This section applies with respect to—

(1)any employee who—

(A)

is separated from service, whether voluntarily or involuntarily, except that if the separation is involuntary, this section shall not apply if the separation is for gross misconduct (as defined under regulations which the Office of Personnel Management shall prescribe); and

(B)

would not otherwise be eligible for any benefits under this chapter (determined without regard to any temporary extension of coverage and without regard to any benefits available under a nongroup contract);

(2)any individual who—

(A)

ceases to meet the requirements for being considered an unmarried dependent child under this chapter;

(B)

on the day before so ceasing to meet the requirements referred to in subparagraph (A), was covered under a health benefits plan under this chapter as a member of the family of an employee or annuitant; and

(C)

(3)any employee who—

(A)

is enrolled in a health benefits plan under this chapter;

(B)

is a member of a reserve component of the armed forces;

(C)

is called or ordered to active duty in support of a contingency operation (as defined in section 101(a)(13) of title 10);

(D)

is placed on leave without pay or separated from service to perform active duty; and

(E)

serves on active duty for a period of more than 30 consecutive days.

(c)

(1)The Office shall prescribe regulations and provide for the inclusion of appropriate terms in contracts with carriers to provide that—

(A)

with respect to an employee who becomes (or will become) eligible for continued coverage under this section as a result of separation from service, the separating agency shall, before the end of the 30-day period beginning on the date as of which coverage (including any temporary extensions of coverage) would otherwise end, notify the individual of such individual’s rights under this section; and

(B)with respect to a child of an employee or annuitant who becomes eligible for continued coverage under this section as a result of ceasing to meet the requirements for being considered a member of theemployee’s or annuitant’s family—

(i)the employee or annuitant may provide written notice of the child’s change in status (complete with the child’s name, address, and such other information as the Office may by regulation require)—

(I)

to the employee’s employing agency; or

(II)

in the case of an annuitant, to the Office; and

(ii)

if the notice referred to in clause (i) is received within 60 days after the date as of which the child involved first ceases to meet the requirements involved, the employing agency or the Office (as the case may be) must, within 14 days after receiving such notice, notify the child of such child’s rights under this section.

(2)In order to obtain continued coverage under this section, an appropriate written election (submitted in such manner as the Office by regulation prescribes) must be made—

(A)in the case of an individual seeking continued coverage based on a separation from service, before the end of the 60-day period beginning on the later of—

(i)

the effective date of the separation; or

(ii)

the date the separated individual receives the notice required under paragraph (1)(A); or

(B)in the case of an individual seeking continued coverage based on a change in circumstances making such individual ineligible for coverage as an unmarried dependent child, before the end of the 60-day period beginning on the later of—

(i)

the date as of which such individual first ceases to meet the requirements for being considered an unmarried dependent child; or

(ii)

the date such individual receives notice under paragraph (1)(B)(ii);

except that if a parent fails to provide the notice required under paragraph (1)(B)(i) in timely fashion, the 60-day period under this subparagraph shall be based on the date under clause (i), irrespective of whether or not any notice under paragraph (1)(B)(ii) is provided.

(d)

(1)

(A)Except as provided in paragraphs (4), (5), and (6), an individual receiving continued coverage under this section shall be required to pay currently into the Employees Health Benefits Fund, under arrangements satisfactory to the Office, an amount equal to the sum of—

(i)

the employee and agency contributions which would be required in the case of an employee enrolled in the same health benefits planand level of benefits; and

(ii)

an amount, determined under regulations prescribed by the Office, necessary for administrative expenses, but not to exceed 2 percent of the total amount under clause (i).

(B)Payments under this section to the Fund shall—

(i)

in the case of an individual whose continued coverage is based on such individual’s separation, be made through the agency which last employed such individual; or

(ii)in the case of an individual whose continued coverage is based on a change in circumstances referred to in subsection (c)(2)(B), be made through—

(I)

the Office, if, at the time coverage would (but for this section) otherwise have been discontinued, the individual was covered as the child of an annuitant; or

(II)

if, at the time referred to in subclause (I), the individual was covered as the child of an employee, the employee’s employing agency as of such time.

(2)

If an individual elects to continue coverage under this section before the end of the applicable period under subsection (c)(2), but after such individual’s coverage under this chapter (including any temporary extensions of coverage) expires, coverage shall be restored retroactively, with appropriate contributions (determined in accordance with paragraph (1), (4), or (5), as the case may be) and claims (if any), to the same extent and effect as though no break in coverage had occurred.

(3)

(A)

An individual making an election under subsection (c)(2)(B) may, at such individual’s option, elect coverage either as an individual or, if appropriate, for self plus one or for self and family.

(B)

For the purpose of this paragraph, members of an individual’s family shall be determined in the same way as would apply under this chapter in the case of an enrolled employee.

(C)

Nothing in this paragraph shall be considered to limit an individual making an election under subsection (c)(2)(A) to coverage for self alone.

(4)

(A)If the basis for continued coverage under this section is an involuntary separation from a position, or a voluntary separation from a surplus position, in or under the Department of Defense due to a reduction in force, or the Department of Energy due to a reduction in force resulting from the establishment of the National Nuclear SecurityAdministration—

(i)

the individual shall be liable for not more than the employeecontributions referred to in paragraph (1)(A)(i); and

(ii)

the agency which last employed the individual shall pay the remaining portion of the amount required under paragraph (1)(A).

(B)This paragraph shall apply with respect to any individual whose continued coverage is based on a separation occurring on or after the date of enactment of this paragraph and before—

(i)

December 31, 2016; or

(ii)

February 1, 2017, if specific notice of such separation was given to such individual before December 31, 2016.

(C)

For the purpose of this paragraph, “surplus position” means a position which is identified in pre-reduction-in-force planning as no longer required, and which is expected to be eliminated under formal reduction-in-force procedures.

(5)

(A)If the basis for continued coverage under this section is an involuntary separation from a position in or under the Department of Veterans Affairs due to a reduction in force or a title 38 staffing readjustment, or a voluntary or involuntary separation from a Department of Energy position at a Department of Energy facility at which the Secretary is carrying out a closure project selected under section 4421[1] of the Atomic Energy Defense Act—

(i)

the individual shall be liable for not more than the employeecontributions referred to in paragraph (1)(A)(i); and

(ii)

the agency which last employed the individual shall pay the remaining portion of the amount required under paragraph (1)(A).

(B)

This paragraph shall only apply with respect to individuals whose continued coverage is based on a separation occurring on or after the date of the enactment of this paragraph.

(6)

(A)If the basis for continued coverage under this section is, as a result of the termination of the Space Shuttle Program, an involuntary separation from a position due to a reduction-in-force or declination of a directed reassignment or transfer of function, or a voluntary separation from a surplus position in the National Aeronautics and Space Administration—

(i)

the individual shall be liable for not more than the employeecontributions referred to in paragraph (1)(A)(i); and

(ii)

the National Aeronautics and Space Administration shall pay the remaining portion of the amount required under paragraph (1)(A).

(B)

This paragraph shall only apply with respect to individuals whose continued coverage is based on a separation occurring on or after the date of enactment of this paragraph and before December 31, 2010.

(C)For purposes of this paragraph, “surplus position” means a position which is—

(i)

identified in pre-reduction-in-force planning as no longer required, and which is expected to be eliminated under formal reduction-in-force procedures as a result of the termination of the Space Shuttle Program; or

(ii)

encumbered by an employee who has received official certification from the National Aeronautics and Space Administrationconsistent with the Administration’s career transition assistance program regulations that the position is being abolished as a result of the termination of the Space Shuttle Program.

(e)

(1)Continued coverage under this section may not extend beyond—

(A)

in the case of an individual whose continued coverage is based on separation from service, the date which is 18 months after the effective date of the separation;

(B)

in the case of an individual whose continued coverage is based on ceasing to meet the requirements for being considered an unmarried dependent child, the date which is 36 months after the date on which the individual first ceases to meet those requirements, subject to paragraph (2); or

(C)

in the case of an employee described in subsection (b)(3), the date which is 24 months after the employee is placed on leave without pay or separated from service to perform active duty.

(2)In the case of an individual who—

(A)

ceases to meet the requirements for being considered an unmarried dependent child;

(B)

as of the day before so ceasing to meet the requirements referred to in subparagraph (A), was covered as the child of a former employeereceiving continued coverage under this section based on the former employee’s separation from service; and

(C)

so ceases to meet the requirements referred to in subparagraph (A) before the end of the 18-month period beginning on the date of the former employee’s separation from service,

extended coverage under this section may not extend beyond the date which is 36 months after the separation date referred to in subparagraph (C).

(f)

(1)The Office shall prescribe regulations under which, in addition to any individual otherwise eligible for continued coverage under this section, and to the extent practicable, continued coverage may also, upon appropriate written application, be afforded under this section—

(A)to any individual who—

(i)

if subparagraphs (A) and (C) of paragraph (10) of section 8901 were disregarded, would be eligible to be considered a former spouse within the meaning of such paragraph; but

(ii)

would not, but for this subsection, be eligible to be so considered; and

(B)

to any individual whose coverage as a family member would otherwise terminate as a result of a legal separation.

(2)The terms and conditions for coverage under the regulations shall include—

(A)

consistent with subsection (c), any necessary notification provisions, and provisions under which an election period of at least 60 days’ duration is afforded;

(B)

terms and conditions identical to those under subsection (d), except that contributions to the Employees Health Benefits Fund shall be made through such agency as the Office by regulation prescribes;

(C)

provisions relating to the termination of continued coverage, except that continued coverage under this section may not (subject to paragraph (3)) extend beyond the date which is 36 months after the date on which the qualifying event under this subsection (the date of divorce, annulment, or legal separation, as the case may be) occurs; and

(D)

provisions designed to ensure that any coverage pursuant to this subsection does not adversely affect any eligibility for coverage which the individual involved might otherwise have under this chapter (including as a result of any change in personal circumstances) if this subsection had not been enacted.

(3)In the case of an individual—

(A)

who becomes eligible for continued coverage under this subsection based on a divorce, annulment, or legal separation from a person who, as of the day before the date of the divorce, annulment, or legal separation (as the case may be) was receiving continued coverage under this section based on such person’s separation from service under a self plus one enrollment that covered the individual or under a self and family enrollment; and

(B)

whose divorce, annulment, or legal separation (as the case may be) occurs before the end of the 18-month period beginning on the date of the separation from service referred to in subparagraph (A),

extended coverage under this section may not extend beyond the date which is 36 months after the date of the separation from service, as referred to in subparagraph (A).

(Added Pub. L. 100–654, title II, § 201(a)(1), Nov. 14, 1988, 102 Stat. 3841; amended Pub. L. 102–484, div. D, title XLIV, § 4438(a), Oct. 23, 1992, 106 Stat. 2725; Pub. L. 103–337, div. A, title III, § 341(d), Oct. 5, 1994, 108 Stat. 2720; Pub. L. 104–106, div. A, title X, § 1036, Feb. 10, 1996, 110 Stat. 431; Pub. L. 106–65, div. A, title XI, § 1104(c), div. C, title XXXII, § 3244, Oct. 5, 1999, 113 Stat. 777, 965; Pub. L. 106–117, title XI, § 1106, Nov. 30, 1999, 113 Stat. 1598; Pub. L. 107–314, div. A, title XI, § 1103, Dec. 2, 2002, 116 Stat. 2661; Pub. L. 107–314, div. D, title XLVI, § 4603(h), formerly Pub. L. 106–398, § 1 [div. C, title XXXI, § 3136(h)], Oct. 30, 2000, 114 Stat. 1654, 1654A–459, renumbered § 4603(h) of Pub. L. 107–314 by Pub. L. 108–136, div. C, title XXXI, § 3141(i)(4)(A)–(C), Nov. 24, 2003, 117 Stat. 1777; Pub. L. 108–136, div. C, title XXXI, § 3141(m)(3), Nov. 24, 2003, 117 Stat. 1787; Pub. L. 108–375, div. A, title XI, § 1101(a), Oct. 28, 2004, 118 Stat. 2072; Pub. L. 109–163, div. A, title XI, § 1101, Jan. 6, 2006, 119 Stat. 3447; Pub. L. 110–422, title VI, § 615, Oct. 15, 2008, 122 Stat. 4800; Pub. L. 111–242, § 151, as added Pub. L. 111–322, title I, § 1(a)(2), Dec. 22, 2010, 124 Stat. 3519; Pub. L. 112–81, div. A, title XI, § 1123, Dec. 31, 2011, 125 Stat. 1617; Pub. L. 113–67, div. A, title VII, § 706(b), Dec. 26, 2013, 127 Stat. 1194.)

5 - 4 - 7 - 6 - 10 Contributions

(a)

(1)Not later than October 1 of each year, the Office of Personnel Management shall determine the weighted average of the subscription charges that will be in effect during the following contract year with respect to—

(A)

enrollments under this chapter for self alone;

(B)

enrollments under this chapter for self plus one; and

(C)

enrollments under this chapter for self and family.

(2)

In determining each weighted average under paragraph (1), the weight to be given to a particular subscription charge shall, with respect to each plan (and option) to which it is to apply, be commensurate with the number of enrollees enrolled in such plan (and option) as of March 31 of the year in which the determination is being made.

(3)

For purposes of paragraph (2), the term “enrollee” means any individual who, during the contract year for which the weighted average is to be used under this section, will be eligible for a Government contribution for health benefits.

(b)

(1)

Except as provided in paragraphs (2), (3), and (4), the biweekly Government contribution for health benefits for an employee or annuitant enrolled in a health benefits plan under this chapter is adjusted to an amount equal to 72 percent of the weighted average under subsection (a)(1)(A) or (B), as applicable. For an employee, the adjustment begins on the first day of the employee’s first pay period of each year. For an annuitant, the adjustment begins on the first day of the first period of each year for which an annuity payment is made.

(2)

The biweekly Government contribution for an employee or annuitant enrolled in a plan under this chapter shall not exceed 75 percent of the subscription charge.

(3)

In the case of an employee who is occupying a position on a part-time career employment basis (as defined in section 3401(2) of this title), the biweekly Government contribution shall be equal to the percentage which bears the same ratio to the percentage determined under this subsection (without regard to this paragraph) as the average number of hours of suchemployee’s regularly scheduled workweek bears to the average number of hours in the regularly scheduled workweek of an employee serving in a comparable position on a full-time career basis (as determined under regulations prescribed by the Office).

(4)

In the case of persons who are enrolled in a health benefits plan as part of the demonstration project under section 1108 of title 10, the Government contribution shall be subject to the limitation set forth in subsection (i) of that section.

(c)

There shall be withheld from the pay of each enrolled employee and (except as provided in subsection (i) of this section) the annuity of each enrolled annuitant and there shall be contributed by the Government, amounts, in the same ratio as the contributions of the employee or annuitant and the Government under subsection (b) of this section, which are necessary for the administrative costs and the reserves provided for by section 8909(b) of this title.

(d)

The amount necessary to pay the total charge for enrollment, after the Government contribution is deducted, shall be withheld from the pay of each enrolled employee and (except as provided in subsection (i) of this section) from the annuity of each enrolled annuitant. The withholding for an annuitant shall be the same as that for an employee enrolled in the same health benefits plan and level of benefits.

(e)

(1)

(A)

An employee enrolled in a health benefits plan under this chapter who is placed in a leave without pay status may have his coverage and the coverage of members of his family continued under the plan for not to exceed 1 year under regulations prescribed by the Office.

(B)During each pay period in which an enrollment continues under subparagraph (A)—

(i)

employee and Government contributions required by this section shall be paid on a current basis; and

(ii)

if necessary, the head of the employing agency shall approve advance payment, recoverable in the same manner as under section 5524a(c), of a portion of basic pay sufficient to pay current employeecontributions.

(C)

Each agency shall establish procedures for accepting direct payments of employee contributions for the purposes of this paragraph.

(2)

An employee who enters on approved leave without pay to serve as a full-time officer or employee of an organization composed primarily of employees as defined by section 8901 of this title, within 60 days after entering on that leave without pay, may file with his employing agency an election to continue his health benefits enrollment and arrange to pay currently into the Employees Health Benefits Fund, through his employing agency, both employee and agency contributions from the beginning of leave without pay. The employing agency shall forward the enrollment charges so paid to the Fund. If the employee does not so elect, his enrollment will continue during nonpay status and end as provided by paragraph (1) of this subsection and implementing regulations.

(3)

(A)

An employing agency may pay both the employee and Governmentcontributions, and any additional administrative expenses otherwise chargeable to the employee, with respect to health care coverage for anemployee described in subparagraph (B) and the family of suchemployee.

(B)An employee referred to in subparagraph (A) is an employee who—

(i)

is enrolled in a health benefits plan under this chapter;

(ii)

is a member of a reserve component of the armed forces;

(iii)

is called or ordered to active duty in support of a contingency operation (as defined in section 101(a)(13) of title 10);

(iv)

is placed on leave without pay or separated from service to perform active duty; and

(v)

serves on active duty for a period of more than 30 consecutive days.

(C)

Notwithstanding the one-year limitation on coverage described in paragraph (1)(A), payment may be made under this paragraph for a period not to exceed 24 months.

(f)The Government contribution, and any additional payments under subsection (e)(3)(A), for health benefits for an employee shall be paid—

(1)

in the case of employees generally, from the appropriation or fund which is used to pay the employee;

(2)

in the case of an elected official, from an appropriation or fund available for payment of other salaries of the same office or establishment;

(3)

in the case of an employee of the legislative branch who is paid by the Chief Administrative Officer of the House of Representatives, from the applicable accounts of the House of Representatives; and

(4)

in the case of an employee in a leave without pay status, from the appropriation or fund which would be used to pay the employee if he were in a pay status.

(g)

(1)

Except as provided in paragraphs (2) and (3), the Governmentcontributions authorized by this section for health benefits for an annuitant shall be paid from annual appropriations which are authorized to be made for that purpose and which may be made available until expended.

(2)

(A)

The Government contributions authorized by this section for health benefits for an individual who first becomes an annuitant by reason of retirement from employment with the United States Postal Service on or after July 1, 1971, or for a survivor of such an individual or of an individual who died on or after July 1, 1971, while employed by the United States Postal Service, shall through September 30, 2016, be paid by the United States Postal Service, and thereafter shall be paid first from the Postal Service Retiree Health Benefits Fund up to the amount contained in the Fund, with any remaining amount paid by the United States Postal Service.

(B)

In determining any amount for which the Postal Service is liable under this paragraph, the amount of the liability shall be prorated to reflect only that portion of total service which is attributable to civilian service performed (by the former postal employee or by the deceased individual referred to in subparagraph (A), as the case may be) after June 30, 1971, as estimated by the Office of Personnel Management.

(3)

The Government contribution for persons enrolled in a health benefits plan as part of the demonstration project under section 1108 of title 10 shall be paid as provided in subsection (i) of that section.

(h)

The Office shall provide for conversion of biweekly rates of contribution specified by this section to rates for employees and annuitants paid on other than a biweekly basis, and for this purpose may provide for the adjustment of the converted rate to the nearest cent.

(i)

An annuitant whose annuity is insufficient to cover the withholdings required for enrollment in a particular health benefits plan may enroll (or remain enrolled) in such plan, notwithstanding any other provision of this section, if theannuitant elects, under conditions prescribed by regulations of the Office, to pay currently into the Employees Health Benefits Fund, through the retirement system that administers the annuitant’s health benefits enrollment, an amount equal to the withholdings that would otherwise be required under this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 604; Pub. L. 90–83, § 1(96), Sept. 11, 1967, 81 Stat. 219; Pub. L. 91–418, § 1(a), Sept. 25, 1970, 84 Stat. 869; Pub. L. 93–246, § 1, Jan. 31, 1974, 88 Stat. 3; Pub. L. 94–310, § 3(a), June 15, 1976, 90 Stat. 687; Pub. L. 95–437, § 4(c)(2)(A), Oct. 10, 1978, 92 Stat. 1059; Pub. L. 95–454, title IX, § 906(a)(15), (c)(2)(F), Oct. 13, 1978, 92 Stat. 1226, 1227; Pub. L. 96–54, § 2(a)(53), Aug. 14, 1979, 93 Stat. 384; Pub. L. 99–272, title XV, § 15202(b), Apr. 7, 1986, 100 Stat. 334; Pub. L. 101–239, title IV, § 4003(a), Dec. 19, 1989, 103 Stat. 2135; Pub. L. 101–303, § 1(a), (b), May 29, 1990, 104 Stat. 250; Pub. L. 101–508, title VII, § 7102(a), (b), Nov. 5, 1990, 104 Stat. 1388–333; Pub. L. 102–378, § 2(78), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 104–186, title II, § 215(19), Aug. 20, 1996, 110 Stat. 1747; Pub. L. 104–208, div. A, title I, § 101(f) [title IV, § 422], Sept. 30, 1996, 110 Stat. 3009–314, 3009–343; Pub. L. 105–33, title VII, § 7002(a), Aug. 5, 1997, 111 Stat. 662; Pub. L. 105–261, div. A, title VII, § 721(b)(2), (3), Oct. 17, 1998, 112 Stat. 2065; Pub. L. 107–107, div. A, title V, § 519(a), (b), Dec. 28, 2001, 115 Stat. 1096; Pub. L. 108–375, div. A, title XI, § 1101(b), Oct. 28, 2004, 118 Stat. 2072; Pub. L. 109–435, title VIII, § 803(a)(1)(A), Dec. 20, 2006, 120 Stat. 3251; Pub. L. 113–67, div. A, title VII, § 706(c), Dec. 26, 2013, 127 Stat. 1194.)

5 - 4 - 7 - 6 - 11 Temporary employees

(a)

(1)

The Office of Personnel Management shall prescribe regulations to provide for offering health benefits plans to temporary employees (who meet the requirements of paragraph (2)) under the provisions of this chapter.

(2)

To be eligible to participate in a health benefits plan offered under this section a temporary employee shall have completed 1 year of current continuous employment, excluding any break in service of 5 days or less.

(b)Notwithstanding the provisions of section 8906—

(1)any temporary employee enrolled in a health benefits plan under this section shall have an amount withheld from the pay of such employee, as determined by the Office of Personnel Management, equal to—

(A)

the amount withheld from the pay of an employee under the provisions of section 8906; and

(B)

the amount of the Government contribution for an employee under section 8906; and

(2)

the employing agency of any such temporary employee shall not pay the Government contribution under the provisions of section 8906.

(Added Pub. L. 100–654, title III, § 301(a), Nov. 14, 1988, 102 Stat. 3846.)

5 - 4 - 7 - 6 - 12 Information to individuals eligible to enroll

(a)

The Office of Personnel Management shall make available to each individual eligible to enroll in a health benefits plan under this chapter such information, in a form acceptable to the Office after consultation with the carrier, as may be necessary to enable the individual to exercise an informed choice among the types of plans described by sections 8903 and 8903a of this title.

(b)Each enrollee in a health benefits plan shall be issued an appropriate document setting forth or summarizing the—

(1)

services or benefits, including maximums, limitations, and exclusions, to which the enrollee or the enrollee and any eligible family members are entitled thereunder;

(2)

procedure for obtaining benefits; and

(3)

principal provisions of the plan affecting the enrollee and any eligible family members.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 605; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 98–615, § 3(5), Nov. 8, 1984, 98 Stat. 3204; Pub. L. 99–53, § 2(d), June 17, 1985, 99 Stat. 94.)

5 - 4 - 7 - 6 - 13 Coverage of restored employees and survivor or disability annuitants

(a)

An employee enrolled in a health benefits plan under this chapter who is removed or suspended without pay and later reinstated or restored to duty on the ground that the removal or suspension was unjustified or unwarranted may, at his option, enroll as a new employee or have his coverage restored, with appropriate adjustments made in contributions and claims, to the same extent and effect as though the removal or suspension had not taken place.

(b)

A surviving spouse whose survivor annuity under this title was terminated because of remarriage and is later restored may, under such regulations as the Office of Personnel Management may prescribe, enroll in a health benefits plan described by section 8903 or 8903a of this title if such spouse was covered by any such plan immediately before such annuity was terminated.

(c)

A disability annuitant whose disability annuity under section 8337 of this titlewas terminated and is later restored under the second or third sentence of subsection (e) of such section may, under regulations prescribed by the Office, enroll in a health benefits plan described by section 8903 or 8903a of this title if such annuitant was covered by any such plan immediately before such annuity was terminated.

(d)

A surviving child whose survivor annuity under section 8341(e) or 8443(b) was terminated and is later restored under paragraph (4) of section 8341(e) or the last sentence of section 8443(b) may, under regulations prescribed by the Office, enroll in a health benefits plan described by section 8903 or 8903a if such surviving child was covered by any such plan immediately before such annuity was terminated.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 605; Pub. L. 94–342, § 1(a), July 6, 1976, 90 Stat. 808; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 99–53, §§ 2(a), 3(a)(1), (2)(A), June 17, 1985, 99 Stat. 94, 95; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 633(a)(3)], Sept. 30, 1996, 110 Stat. 3009–314, 3009–363.)

5 - 4 - 7 - 6 - 14 Employees Health Benefits Fund

(a)There is in the Treasury of the United States an Employees Health Benefits Fund which is administered by the Office of Personnel Management. The contributions of enrollees and the Government described by section 8906 of this title shall be paid into the Fund. The Fund is available—

(1)

without fiscal year limitation for all payments to approved health benefits plans; and

(2)

to pay expenses for administering this chapter within the limitations that may be specified annually by Congress.

Payments from the Fund to a plan participating in a letter-of-credit arrangement under this chapter shall, in connection with any payment or reimbursement to be made by such plan for a health service or supply, be made, to the maximum extent practicable, on a checks-presented basis (as defined under regulations of the Department of the Treasury).

(b)Portions of the contributions made by enrollees and the Government shall be regularly set aside in the Fund as follows:

(1)

A percentage, not to exceed 1 percent of all contributions, determined by the Office to be reasonably adequate to pay the administrative expenses made available by subsection (a) of this section.

(2)

For each health benefits plan, a percentage, not to exceed 3 percent of the contributions toward the plan, determined by the Office to be reasonably adequate to provide a contingency reserve.

The Office, from time to time and in amounts it considers appropriate, may transfer unused funds for administrative expenses to the contingency reserves of the plans then under contract with the Office. When funds are so transferred, each contingency reserve shall be credited in proportion to the total amount of the subscription charges paid and accrued to the plan for the contract term immediately before the contract term in which the transfer is made. The income derived from dividends, rate adjustments, or other refunds made by a plan shall be credited to its contingency reserve. The contingency reserves may be used to defray increases in future rates, or may be applied to reduce the contributions of enrollees and the Government to, or to increase the benefits provided by, the plan from which the reserves are derived, as the Office from time to time shall determine.

(c)

(d)

When the assets, liabilities, and membership of employee organizationssponsoring or underwriting plans approved under section 8903(3) or 8903a of this title are merged, the assets (including contingency reserves) and liabilities of the plans sponsored or underwritten by the merged organizations shall be transferred at the beginning of the contract term next following the date of the merger to the plan sponsored or underwritten by the successor organization. Each employee, annuitant, former spouse, or person having continued coverage under section 8905a of this title affected by a merger shall be transferred to the plan sponsored or underwritten by the successor organization unless he enrolls in another plan under this chapter. If the successor organization is an organization described in section 8901(8)(B) of this title, any employee,annuitant, former spouse, or person having continued coverage under section 8905a of this title so transferred may not remain enrolled in the plan after the end of the contract term in which the merger occurs unless that individual is a full member of such organization (as determined under section 8903a(d) of this title).

(e)

(1)

Except as provided by subsection (d) of this section, when a plan described by section 8903(3) or (4) or 8903a of this title is discontinued under this chapter, the contingency reserve of that plan shall be credited to the contingency reserves of the plans continuing under this chapter for the contract term following that in which termination occurs, each reserve to be credited in proportion to the amount of the subscription charges paid and accrued to the plan for the year of termination.

(2)

Any crediting required under paragraph (1) pursuant to the discontinuation of any plan under this chapter shall be completed by the end of the second contract year beginning after such plan is so discontinued.

(3)

The Office shall prescribe regulations in accordance with which this subsection shall be applied in the case of any plan which is discontinued before being credited with the full amount to which it would otherwise be entitled based on the discontinuation of any other plan.

(f)

(1)

No tax, fee, or other monetary payment may be imposed, directly or indirectly, on a carrier or an underwriting or plan administration subcontractor of an approved health benefits plan by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, with respect to any payment made from the Fund.

(2)

Paragraph (1) shall not be construed to exempt any carrier or underwriting or plan administration subcontractor of an approved health benefits plan from the imposition, payment, or collection of a tax, fee, or other monetary payment on the net income or profit accruing to or realized by such carrier or underwriting or plan administration subcontractor from business conducted under this chapter, if that tax, fee, or payment is applicable to a broad range of business activity.

(g)

The fund described in subsection (a) is available to pay costs that the Office incurs for activities associated with implementation of the demonstration project under section 1108 of title 10.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 605; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 98–615, § 3(6), Nov. 8, 1984, 98 Stat. 3204; Pub. L. 99–53, § 2(e), (f), June 17, 1985, 99 Stat. 94; Pub. L. 99–251, title I, § 101, Feb. 27, 1986, 100 Stat. 14; Pub. L. 100–654, title II, § 202(a), Nov. 14, 1988, 102 Stat. 3845; Pub. L. 101–508, title VII, § 7002(b), (c), Nov. 5, 1990, 104 Stat. 1388–330; Pub. L. 105–261, div. A, title VII, § 721(b)(4), Oct. 17, 1998, 112 Stat. 2065; Pub. L. 105–266, § 6(b)(1), Oct. 19, 1998, 112 Stat. 2369.)

5 - 4 - 7 - 6 - 15 Postal Service Retiree Health Benefit 11 So in original. Probably should be “Benefits”. Fund

(a)

There is in the Treasury of the United States a Postal Service Retiree Health Benefits Fund which is administered by the Office of Personnel Management.

(b)

The Fund is available without fiscal year limitation for payments required under section 8906(g)(2)(A).

(c)

The Secretary of the Treasury shall immediately invest, in interest-bearing securities of the United States such currently available portions of the Fund as are not immediately required for payments from the Fund. Such investments shall be made in the same manner as investments for the Civil Service Retirement and Disability Fund under section 8348.

(d)

(1)

Not later than June 30, 2026, and by June 30 of each succeeding year, the Office shall compute, for the most recently concluded fiscal year, the amount (if any) that Government contributions required to be paid from the Fund under section 8906(g)(2)(A) exceeded the estimated net claims costs under the enrollment of the individuals described in section 8906(g)(2)(A).

(2)

Not later than September 30 of each year in which the Office makes a computation under paragraph (1), the United States Postal Service shall pay into the Fund the amount (if any) of the excess computed under such paragraph.

(e)Any computation required under section 3654(b) of title 39 shall be based on—

(1)the net present value of the future net claims costs with respect to—

(A)

current annuitants of the United States Postal Service as of the end of the fiscal year ending on September 30 of the relevant reporting year; and

(B)current employees of the United States Postal Service who would, as of September 30 of that year—

(i)

be eligible to become annuitants pursuant to section 8901(3)(A)(i)or (ii); and

(ii)

if they were retired as of that date, meet the criteria for coverage of annuitants under section 8905(b);

(2)

economic and actuarial methods and assumptions consistent with the methods and assumptions used in determining the Postal surplus or supplemental liability under section 8348(h); and

(3)

any other methods and assumptions, including a health care cost trend rate, that the Director of the Office determines to be appropriate.

(f)

After consultation with the United States Postal Service, the Office shall promulgate any regulations the Office determines necessary under this subsection.

(g)For purposes of this section, the term “estimated net claims costs” shall mean the difference between—

(1)the sum of—

(A)

the estimated costs incurred by a carrier in providing health services to, paying for health services provided to, or reimbursing expenses for health services provided to, annuitants of the United States Postal Serviceand any other persons covered under the enrollment of such annuitants;and

(B)

an amount of indirect expenses reasonably allocable to the provision, payment, or reimbursement described in subparagraph (A), as determined by the Office; and

(2)

the amount withheld from the annuity of or paid by annuitants of the United States Postal Service under section 8906.

(Added Pub. L. 109–435, title VIII, § 803(a)(1)(B), Dec. 20, 2006, 120 Stat. 3251; amended Pub. L. 111–68, div. B, § 164(a), Oct. 1, 2009, 123 Stat. 2053; Pub. L. 112–33, § 124, Sept. 30, 2011, 125 Stat. 366; Pub. L. 112–74, div. C, title VI, § 632, Dec. 23, 2011, 125 Stat. 928; Pub. L. 117–108, title I, § 102(b), Apr. 6, 2022, 136 Stat. 1138.)

5 - 4 - 7 - 6 - 16 Studies, reports, and audits

(a)

The Office of Personnel Management shall make a continuing study of the operation and administration of this chapter, including surveys and reports onhealth benefits plans available to employees and on the experience of the plans.

(b)Each contract entered into under section 8902 of this title shall contain provisions requiring carriers to—

(1)

furnish such reasonable reports as the Office determines to be necessary to enable it to carry out its functions under this chapter; and

(2)

permit the Office and representatives of the Government Accountability Office to examine records of the carriers as may be necessary to carry out the purposes of this chapter.

(c)

Each Government agency shall keep such records, make such certifications, and furnish the Office with such information and reports as may be necessary to enable the Office to carry out its functions under this chapter.

(d)

The Office, in consultation with the Department of Health and Human Services, shall develop and implement a system through which the carrier for an approved health benefits plan described by section 8903 or 8903a will be able to identify those annuitants or other individuals covered by such plan who are entitled to benefits under part A or B of title XVIII of the Social Security Act in order to ensure that payments under coordination of benefits with Medicare do not exceed the statutory maximums which physicians may charge Medicareenrollees.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 606; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 101–508, title VII, § 7002(d), Nov. 5, 1990, 104 Stat. 1388–330; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

5 - 4 - 7 - 6 - 17 Advisory committee

The Director of the Office of Personnel Management shall appoint a committee composed of five members, who serve without pay, to advise the Office regarding matters of concern to employees under this chapter. Each member of the committee shall be an employee enrolled under this chapter or an elected official of an employee organization.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 607; Pub. L. 95–454, title IX, § 906(a)(1), (4), Oct. 13, 1978, 92 Stat. 1224, 1225.)

5 - 4 - 7 - 6 - 18 Jurisdiction of courts

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 607; Pub. L. 97–164, title I, § 160(a)(3), Apr. 2, 1982, 96 Stat. 48; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516.)

5 - 4 - 7 - 6 - 19 Regulations

(a)

The Office of Personnel Management may prescribe regulations necessary to carry out this chapter.

(b)The regulations of the Office may prescribe the time at which and the manner and conditions under which an employee is eligible to enroll in an approved health benefits plan described by section 8903 or 8903a of this title. The regulations may exclude an employee on the basis of the nature and type of his employment or conditions pertaining to it, such as short-term appointment, seasonal or intermittent employment, and employment of like nature. The Office may not exclude—

(1)

an employee or group of employees solely on the basis of the hazardous nature of employment;

(2)

(3)

an employee who is occupying a position on a part-time career employment basis (as defined in section 3401(2) of this title); or

(4)

an employee who is employed on a temporary basis and is eligible under section 8906a(a).

(c)

The regulations of the Office shall provide for the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses under health benefits plans. The regulations may permit the coverage to continue, exclusive of the temporary extension of coverage described by section 8902(g) of this title, until the end of the pay period in which an employee is separated from the service, or until the end of the month in which anannuitant or former spouse ceases to be entitled to annuity, and in case of the death of an employee or annuitant, may permit a temporary extension of the coverage of members of his family for not to exceed 90 days.

(d)

The Secretary of Agriculture shall prescribe regulations to effect the application and operation of this chapter to an individual named by section 8901(1)(H) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 607; Pub. L. 95–437, § 4(c)(1), Oct. 10, 1978, 92 Stat. 1058; Pub. L. 95–454, title IX, § 906(a)(2), (3), (c)(2)(F), (H), Oct. 13, 1978, 92 Stat. 1224, 1227; Pub. L. 98–615, § 3(7), Nov. 8, 1984, 98 Stat. 3204; Pub. L. 99–53, § 2(a), June 17, 1985, 99 Stat. 94; Pub. L. 100–654, title III, § 301(c), Nov. 14, 1988, 102 Stat. 3846.)

5 - 4 - 7 - 6 - 20 Effect of other statutes

(Added Pub. L. 100–238, title I, § 108(a)(3)(A), Jan. 8, 1988, 101 Stat. 1747.)

5 - 4 - 7 - 7 ENHANCED DENTAL BENEFITS (§§ 8951 to 8962)

5 - 4 - 7 - 7 - 1 Definitions

In this chapter:

(1)

The term “employee” means an employee defined under section 8901(1) and an employee of the District of Columbia courts.

(2)

The terms “annuitant”, “member of family”, and “dependent” have the meanings as such terms are defined under paragraphs (3), (5), and (9), respectively, of section 8901.

(3)

The term “eligible individual” refers to an individual described in paragraph (1), (2), or (8), without regard to whether the individual is enrolled in a health benefits plan under chapter 89.

(4)

The term “Office” means the Office of Personnel Management.

(5)

The term “qualified company” means a company (or consortium of companies or an employee organization defined under section 8901(8)) that offers indemnity, preferred provider organization, health maintenance organization, or discount dental programs and if required is licensed to issue applicable coverage in any number of States, taking any subsidiaries of such a company into account (and, in the case of a consortium, considering the member companies and any subsidiaries thereof, collectively).

(6)

The term “employee organization” means an association or other organization of employees which is national in scope, or in which membership is open to all employees of a Government agency who are eligible to enroll in a health benefits plan under chapter 89.

(7)

The term “State” includes the District of Columbia.

(8)

The term “covered TRICARE-eligible individual” means an individual entitled to dental care under chapter 55 of title 10, pursuant to section 1076c of such title, who the Secretary of Defense determines should be an eligible individual for purposes of this chapter.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4001; amended Pub. L. 109–356, title I, § 117(a)(1), Oct. 16, 2006, 120 Stat. 2027; Pub. L. 114–328, div. A, title VII, § 715(a)(1), Dec. 23, 2016, 130 Stat. 2221; Pub. L. 115–232, div. A, title VII, § 713(a), Aug. 13, 2018, 132 Stat. 1811; Pub. L. 116–283, div. A, title VII, § 711(a), (c), Jan. 1, 2021, 134 Stat. 3691.)

(a)

The Office shall establish and administer a program through which an eligible individual may obtain dental coverage to supplement coverage available through chapter 89.

(b)

The Office shall determine, in the exercise of its reasonable discretion, the financial requirements for qualified companies to participate in the program.

(c)

Nothing in this chapter shall be construed to prohibit the availability of dental benefits provided by health benefits plans under chapter 89.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4002.)

5 - 4 - 7 - 7 - 2 Contracting authority

(a)

(1)

The Office shall contract with a reasonable number of qualified companies for a policy or policies of benefits described under section 8954without regard to section 6101(b) to (d) of title 41 or any other statute requiring competitive bidding. An employee organization may contract with a qualified company for the purpose of participating with that qualified company in any contract between the Office and that qualified company.

(2)

The Office shall ensure that each resulting contract is awarded on the basis of contractor qualifications, price, and reasonable competition.

(b)Each contract under this section shall contain—

(1)

the requirements under section 8902(d), (f), and (i) made applicable to contracts under this section by regulations prescribed by the Office;

(2)

the terms of the enrollment period; and

(3)

such other terms and conditions as may be mutually agreed to by the Office and the qualified company involved, consistent with the requirements of this chapter and regulations prescribed by the Office.

(c)

Nothing in this chapter shall, in the case of an individual electing dental supplemental benefit coverage under this chapter after the expiration of such individual’s first opportunity to enroll, preclude the application of waiting periods more stringent than those that would have applied if that opportunity had not yet expired.

(d)

(1)Each contract under this chapter shall require the qualified company to agree—

(A)

to provide payments or benefits to an eligible individual if such individual is entitled thereto under the terms of the contract; and

(B)with respect to disputes regarding claims for payments or benefits under the terms of the contract—

(i)

to establish internal procedures designed to expeditiously resolve such disputes; and

(ii)

to establish, for disputes not resolved through procedures under clause (i), procedures for 1 or more alternative means of dispute resolution involving independent third-party review under appropriate circumstances by entities mutually acceptable to the Office and the qualified company.

(2)

A determination by a qualified company as to whether or not a particular individual is eligible to obtain coverage under this chapter shall be subject to review only to the extent and in the manner provided in the applicable contract.

(3)For purposes of applying the Contract Disputes Act of 1978 [1] to disputes arising under this chapter between a qualified company and the Office—

(A)

the agency board having jurisdiction to decide an appeal relative to such a dispute shall be such board of contract appeals as the Director of the Office of Personnel Management shall specify in writing (after appropriate arrangements, as described in section 8(c) 1 of such Act); and

(B)

the district courts of the United States shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of any action described in section 10(a)(1) 1 of such Act relative to such a dispute.

(e)

Nothing in this section shall be considered to grant authority for the Office or third-party reviewer to change the terms of any contract under this chapter.

(f)

Contracts under this chapter shall be for a uniform term of 7 years and may not be renewed automatically.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4002; amended Pub. L. 111–350, § 5(a)(16), Jan. 4, 2011, 124 Stat. 3842.)

5 - 4 - 7 - 7 - 3 Benefits

(a)

The Office may prescribe reasonable minimum standards for enhanced dental benefits plans offered under this chapter and for qualified companies offering the plans.

(b)

Each contract may include more than 1 level of benefits that shall be made available to all eligible individuals.

(c)The benefits to be provided under enhanced dental benefits plans under this chapter may be of the following types:

(1)

Diagnostic.

(2)

Preventive.

(3)

Emergency care.

(4)

Restorative.

(5)

Oral and maxillofacial surgery.

(6)

Endodontics.

(7)

Periodontics.

(8)

Prosthodontics.

(9)

Orthodontics.

(d)

A contract approved under this chapter shall require the qualified companyto cover the geographic service delivery area specified by the Office. The Office shall require qualified companies to include dentally underserved areas in their service delivery areas.

(e)

If an individual has dental coverage under a health benefits plan under chapter 89 and also has coverage under a plan under this chapter, the health benefits plan under chapter 89 shall be the first payor of any benefit payments.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4003.)

5 - 4 - 7 - 7 - 4 Information to individuals eligible to enroll

(a)

The qualified companies [1] at the direction and with the approval of theOffice, shall make available to each individual eligible to enroll in a dental benefits plan information on services and benefits (including maximums, limitations, and exclusions), that the Office considers necessary to enable the individual to make an informed decision about electing coverage.

(b)

The Office shall make available to each individual eligible to enroll in a dental benefits plan, information on services and benefits provided by qualified companies participating under chapter 89.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4004.)

5 - 4 - 7 - 7 - 5 Election of coverage

(a)

An eligible individual may enroll in a dental benefits plan for self-only, self plus one, or for self and family. If an eligible individual has a spouse who is also eligible to enroll, either spouse, but not both, may enroll for self plus one or self and family. An individual may not be enrolled both as an employee, annuitant, or other individual eligible to enroll and as a member of the family.

(b)The Office shall prescribe regulations under which—

(1)

an eligible individual may enroll in a dental benefits plan; and

(2)

an enrolled individual may change the self-only, self plus one, or self and family coverage of that individual.

(c)

(1)Regulations under subsection (b) shall permit an eligible individual to cancel or transfer the enrollment of that individual to another dental benefits plan—

(A)

before the start of any contract term in which there is a change in rates charged or benefits provided, in which a new plan is offered, or in which an existing plan is terminated; or

(B)

during other times and under other circumstances specified by the Office.

(2)

A transfer under paragraph (1) shall be subject to waiting periods provided under a new plan.

(d)

Coverage under a dental benefits plan under this chapter for any employeeor a covered TRICARE-eligible individual enrolled in such a plan and who, as a result of a lapse in appropriations, is furloughed or excepted from furlough and working without pay shall continue during such lapse and may not be cancelled as a result of nonpayment of premiums or other periodic charges due to such lapse.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4004; amended Pub. L. 116–92, div. A, title XI, § 1111(a)(1), Dec. 20, 2019, 133 Stat. 1600.)

5 - 4 - 7 - 7 - 6 Coverage of restored survivor or disability annuitants

A surviving spouse, disability annuitant, or surviving child whose annuity is terminated and is later restored, may continue enrollment in a dental benefits plan subject to the terms and conditions prescribed in regulations issued by the Office.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4004.)

5 - 4 - 7 - 7 - 7 Premiums

(a)

Each eligible individual obtaining supplemental dental coverage under this chapter shall be responsible for 100 percent of the premiums for such coverage.

(b)

The Office shall prescribe regulations specifying the terms and conditions under which individuals are required to pay the premiums for enrollment.

(c)The amount necessary to pay the premiums for enrollment may—

(1)

in the case of an employee, be withheld from the pay of such an employee;

(2)

in the case of an annuitant, be withheld from the annuity of such an annuitant;

(3)in the case of a covered TRICARE-eligible individual who receives pay from the Federal Government or an annuity from the Federal Government due to the death of a member of the uniformed services (as defined in section 101 of title 10), and is not a former spouse of a member of the uniformed services, be withheld from—

(A)

the pay (including retired pay) of such individual; or

(B)

the annuity paid to such individual; or

(4)

in the case of a covered TRICARE-eligible individual who is not described in paragraph (3), be billed to such individual directly.

(d)

All amounts withheld under this section shall be paid directly to the qualified company.

(e)

Each participating qualified company shall maintain accounting records that contain such information and reports as the Office may require.

(f)

(1)

The Employee Health Benefits Fund is available, without fiscal year limitation, for reasonable expenses incurred by the Office in administering this chapter before the first day of the first contract period, including reasonable implementation costs.

(2)

(A)

There is established in the Employees Health Benefits Fund a Dental Benefits Administrative Account, which shall be available to the Office,without fiscal year limitation, to defray reasonable expenses incurred by the Office in administering this chapter after the start of the first contract year.

(B)

A contract under this chapter shall include appropriate provisions under which the qualified company involved shall, during each year, make such periodic contributions to the Dental Benefits Administrative Account as necessary to ensure that the reasonable anticipated expenses of the Office in administering this chapter during such year are defrayed.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4004; amended Pub. L. 114–328, div. A, title VII, § 715(b)(1), Dec. 23, 2016, 130 Stat. 2222.)

5 - 4 - 7 - 7 - 8 Preemption

The terms of any contract that relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to dental benefits, insurance, plans, or contracts.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4005.)

5 - 4 - 7 - 7 - 9 Studies, reports, and audits

(a)Each contract shall contain provisions requiring the qualified company to—

(1)

furnish such reasonable reports as the Office determines to be necessary to enable it to carry out its functions under this chapter; and

(2)

permit the Office and representatives of the Government Accountability Office to examine such records of the qualified company as may be necessary to carry out the purposes of this chapter.

(b)

Each Federal agency shall keep such records, make such certifications, and furnish the Office, the qualified company, or both, with such information and reports as the Office may require.

(c)

The Office shall conduct periodic reviews of plans under this chapter, including a comparison of the dental benefits available under chapter 89, to ensure the competitiveness of plans under this chapter. The Office shall cooperate with the Government Accountability Office to provide periodic evaluations of the program.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4005.)

5 - 4 - 7 - 7 - 10 Jurisdiction of courts

The district courts of the United States have original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the UnitedStates under this chapter after such administrative remedies as required under section 8953(d) have been exhausted, but only to the extent judicial review is not precluded by any dispute resolution or other remedy under this chapter.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4005.)

5 - 4 - 7 - 7 - 11 Administrative functions

(a)

The Office shall prescribe regulations to carry out this chapter. The regulations may exclude an employee on the basis of the nature and type of employment or conditions pertaining to it.

(b)

The Office shall, as appropriate, provide for coordinated enrollment, promotion, and education efforts as appropriate in consultation with each qualified company. The information under this subsection shall include information relating to the dental benefits available under chapter 89, including the advantages and disadvantages of obtaining additional coverage under this chapter.

(Added Pub. L. 108–496, § 2, Dec. 23, 2004, 118 Stat. 4006.)

5 - 4 - 7 - 8 ENHANCED VISION BENEFITS (§§ 8981 to 8992)

5 - 4 - 7 - 8 - 1 Definitions

In this chapter:

(1)

The term “employee” means an employee defined under section 8901(1) and an employee of the District of Columbia courts.

(2)

The terms “annuitant”, “member of family”, and “dependent” have the meanings as such terms are defined under paragraphs (3), (5), and (9), respectively, of section 8901.

(3)

The term “eligible individual” refers to an individual described in paragraph (1), (2), or (8), without regard to whether the individual is enrolled in a health benefits plan under chapter 89.

(4)

The term “Office” means the Office of Personnel Management.

(5)

The term “qualified company” means a company (or consortium of companies or an employee organization defined under section 8901(8)) that offers indemnity, preferred provider organization, health maintenance organization, or discount vision programs and if required is licensed to issue applicable coverage in any number of States, taking any subsidiaries of such a company into account (and, in the case of a consortium, considering the member companies and any subsidiaries thereof, collectively).

(6)

(7)

The term “State” includes the District of Columbia.

(8)

(A)The term “covered TRICARE-eligible individual”—

(i)

means an individual entitled to medical care under chapter 55 of title 10, pursuant to section 1076d, 1076e, 1079(a), 1086(c), or 1086(d) of such title, who the Secretary of Defense determines in accordance with an agreement entered into under subparagraph (B) should be an eligible individual for purposes of this chapter; and

(ii)

does not include an individual covered under section 1110b of title 10.

(B)

The Secretary of Defense shall enter into an agreement with the Director of the Office relating to classes of individuals described in subparagraph (A)(i) who should be eligible individuals for purposes of this chapter.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4006; amended Pub. L. 109–356, title I, § 117(a)(2), Oct. 16, 2006, 120 Stat. 2027; Pub. L. 114–328, div. A, title VII, § 715(a)(2), Dec. 23, 2016, 130 Stat. 2221.)

5 - 4 - 7 - 8 - 2 Availability of vision benefits

(a)

The Office shall establish and administer a program through which an eligible individual may obtain vision coverage to supplement coverage available through chapter 89.

(b)

The Office shall determine, in the exercise of its reasonable discretion, the financial requirements for qualified companies to participate in the program.

(c)

Nothing in this chapter shall be construed to prohibit the availability of vision benefits provided by health benefits plans under chapter 89.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4007.)

5 - 4 - 7 - 8 - 3 Contracting authority

(a)

(1)

The Office shall contract with a reasonable number of qualified companies for a policy or policies of benefits described under section 8984without regard to section 6101(b) to (d) of title 41 or any other statute requiring competitive bidding. An employee organization may contract with a qualified company for the purpose of participating with that qualified company in any contract between the Office and that qualified company.

(2)

The Office shall ensure that each resulting contract is awarded on the basis of contractor qualifications, price, and reasonable competition.

(b)Each contract under this section shall contain—

(1)

the requirements under section 8902(d), (f), and (i) made applicable to contracts under this section by regulations prescribed by the Office;

(2)

the terms of the enrollment period; and

(3)

(c)

Nothing in this chapter shall, in the case of an individual electing vision supplemental benefit coverage under this chapter after the expiration of such individual’s first opportunity to enroll, preclude the application of waiting periods more stringent than those that would have applied if that opportunity had not yet expired.

(d)

(1)Each contract under this chapter shall require the qualified company to agree—

(A)

to provide payments or benefits to an eligible individual if such individual is entitled thereto under the terms of the contract; and

(B)with respect to disputes regarding claims for payments or benefits under the terms of the contract—

(i)

to establish internal procedures designed to expeditiously resolve such disputes; and

(ii)

(2)

(3)For purposes of applying the Contract Disputes Act of 1978 [1] to disputes arising under this chapter between a qualified company and the Office—

(A)

(B)

(e)

Nothing in this section shall be considered to grant authority for the Office or third-party reviewer to change the terms of any contract under this chapter.

(f)

Contracts under this chapter shall be for a uniform term of 7 years and may not be renewed automatically.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4007; amended Pub. L. 111–350, § 5(a)(17), Jan. 4, 2011, 124 Stat. 3842.)

5 - 4 - 7 - 8 - 4 Benefits

(a)

The Office may prescribe reasonable minimum standards for enhanced vision benefits plans offered under this chapter and for qualified companies offering the plans.

(b)

Each contract may include more than 1 level of benefits that shall be made available to all eligible individuals.

(c)The benefits to be provided under enhanced vision benefits plans under this chapter may be of the following types:

(1)

Diagnostic (to include refractive services).

(2)

Preventive.

(3)

Eyewear.

(d)

A contract approved under this chapter shall require the qualified companyto cover the geographic service delivery area specified by the Office. The Office shall require qualified companies to include visually underserved areas in their service delivery areas.

(e)

If an individual has vision coverage under a health benefits plan under chapter 89 and also has coverage under a plan under this chapter, the health benefits plan under chapter 89 shall be the first payor of any benefit payments.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4008.)

5 - 4 - 7 - 8 - 5 Information to individuals eligible to enroll

(a)

The qualified companies at the direction and with the approval of the Office, shall make available to each individual eligible to enroll in a vision benefits plan information on services and benefits (including maximums, limitations, and exclusions), that the Office considers necessary to enable the individual to make an informed decision about electing coverage.

(b)

The Office shall make available to each individual eligible to enroll in a vision benefits plan, information on services and benefits provided by qualified companies participating under chapter 89.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4008.)

5 - 4 - 7 - 8 - 6 Election of coverage

(a)

An eligible individual may enroll in a vision benefits plan for self-only, self plus one, or for self and family. If an eligible individual has a spouse who is also eligible to enroll, either spouse, but not both, may enroll for self plus one or self and family. An individual may not be enrolled both as an employee, annuitant, or other individual eligible to enroll and as a member of the family.

(b)The Office shall prescribe regulations under which—

(1)

an eligible individual may enroll in a vision benefits plan; and

(2)

an enrolled individual may change the self-only, self plus one, or self and family coverage of that individual.

(c)

(1)Regulations under subsection (b) shall permit an eligible individual to cancel or transfer the enrollment of that individual to another vision benefits plan—

(A)

before the start of any contract term in which there is a change in rates charged or benefits provided, in which a new plan is offered, or in which an existing plan is terminated; or

(B)

during other times and under other circumstances specified by the Office.

(2)

A transfer under paragraph (1) shall be subject to waiting periods provided under a new plan.

(d)

Coverage under a vision benefits plan under this chapter for any employee or a covered TRICARE-eligible individual enrolled in such a plan and who, as a result of a lapse in appropriations, is furloughed or excepted from furlough and working without pay shall continue during such lapse and may not be cancelled as a result of nonpayment of premiums or other periodic charges due to such lapse.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4008; amended Pub. L. 116–92, div. A, title XI, § 1111(a)(2), Dec. 20, 2019, 133 Stat. 1601.)

5 - 4 - 7 - 8 - 7 Coverage of restored survivor or disability annuitants

A surviving spouse, disability annuitant, or surviving child whose annuity is terminated and is later restored, may continue enrollment in a vision benefits plan subject to the terms and conditions prescribed in regulations issued by the Office.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4009.)

5 - 4 - 7 - 8 - 8 Premiums

(a)

Each eligible individual obtaining supplemental vision coverage under this chapter shall be responsible for 100 percent of the premiums for such coverage.

(b)

The Office shall prescribe regulations specifying the terms and conditions under which individuals are required to pay the premiums for enrollment.

(c)The amount necessary to pay the premiums for enrollment may—

(1)

in the case of an employee, be withheld from the pay of such an employee;

(2)

in the case of an annuitant, be withheld from the annuity of such an annuitant;

(A)

the pay (including retired pay) of such individual; or

(B)

the annuity paid to such individual; or

(4)

in the case of a covered TRICARE-eligible individual who is not described in paragraph (3), be billed to such individual directly.

(d)

All amounts withheld under this section shall be paid directly to the qualified company.

(e)

Each participating qualified company shall maintain accounting records that contain such information and reports as the Office may require.

(f)

(1)

(2)

(A)

There is established in the Employees Health Benefits Fund a Vision Benefits Administrative Account, which shall be available to the Office,without fiscal year limitation, to defray reasonable expenses incurred by the Office in administering this chapter after the start of the first contract year.

(B)

A contract under this chapter shall include appropriate provisions under which the qualified company involved shall, during each year, make such periodic contributions to the Vision Benefits Administrative Account as necessary to ensure that the reasonable anticipated expenses of the Office in administering this chapter during such year are defrayed.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4009; amended Pub. L. 114–328, div. A, title VII, § 715(b)(2), Dec. 23, 2016, 130 Stat. 2222.)

5 - 4 - 7 - 8 - 9 Preemption

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4010.)

5 - 4 - 7 - 8 - 10 Studies, reports, and audits

(a)Each contract shall contain provisions requiring the qualified company to—

(1)

furnish such reasonable reports as the Office determines to be necessary to enable it to carry out its functions under this chapter; and

(2)

permit the Office and representatives of the Government Accountability Office to examine such records of the qualified company as may be necessary to carry out the purposes of this chapter.

(b)

Each Federal agency shall keep such records, make such certifications, and furnish the Office, the qualified company, or both, with such information and reports as the Office may require.

(c)

The Office shall conduct periodic reviews of plans under this chapter, including a comparison of the vision benefits available under chapter 89, to ensure the competitiveness of plans under this chapter. The Office shall cooperate with the Government Accountability Office to provide periodic evaluations of the program.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4010.)

5 - 4 - 7 - 8 - 11 Jurisdiction of courts

The district courts of the United States have original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the UnitedStates under this chapter after such administrative remedies as required under section 8983(d) have been exhausted, but only to the extent judicial review is not precluded by any dispute resolution or other remedy under this chapter.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4010.)

5 - 4 - 7 - 8 - 12 Administrative functions

(a)

The Office shall prescribe regulations to carry out this chapter. The regulations may exclude an employee on the basis of the nature and type of employment or conditions pertaining to it.

(b)

The Office shall, as appropriate, provide for coordinated enrollment, promotion, and education efforts as appropriate in consultation with each qualified company. The information under this subsection shall include information relating to the vision benefits available under chapter 89, including the advantages and disadvantages of obtaining additional coverage under this chapter.

(Added Pub. L. 108–496, § 3, Dec. 23, 2004, 118 Stat. 4010.)

5 - 4 - 7 - 9 LONG-TERM CARE INSURANCE (§§ 9001 to 9009)

5 - 4 - 7 - 9 - 1 Definitions

For purposes of this chapter:

(1)Employee.—The term “employee” means—

(A)

an employee as defined by section 8901(1);

(B)

an individual described in section 2105(e);

(C)

an individual employed by the Tennessee Valley Authority;

(D)

an employee of a nonappropriated fund instrumentality of the Department of Defense described in section 2105(c); and

(E)

an employee of the District of Columbia courts.

(2)Annuitant.—The term “annuitant” means—

(A)

any individual who would satisfy the requirements of paragraph (3) of section 8901 if, for purposes of such paragraph, the term “employee” were considered to have the meaning given to it under paragraph (1);

(B)any individual who—

(i)

satisfies all requirements for title to an annuity under subchapter III of chapter 83, chapter 84, or any other retirement system for employees of the Government (whether based on the service of such individual or otherwise), and files application therefor;

(ii)

is at least 18 years of age; and

(iii)

would not (but for this subparagraph) otherwise satisfy the requirements of this paragraph; and

(C)

any former employee who, on the basis of his or her service, would meet all requirements for being considered an “annuitant” within the meaning of subchapter III of chapter 83, chapter 84, or any other retirement system foremployees of the Government, but for the fact that such former employee has not attained the minimum age for title to annuity.

(3)Member of the uniformed services.—The term “member of the uniformed services” means a member of the uniformed services, other than a retired member of the uniformed services, who is—

(A)

on active duty or full-time National Guard duty for a period of more than 30 days; or

(B)

a member of the Selected Reserve.

(4)Retired member of the uniformed services.—

The term “retired member of the uniformed services” means a member or former member of the uniformed services entitled to retired or retainer pay, and a member who has been transferred to the Retired Reserve and who would be entitled to retired pay under chapter 1223 of title 10 but for not having attained the age of 60 and who satisfies such eligibility requirements as the Office of Personnel Management prescribes under section 9008.

(5)Qualified relative.—The term “qualified relative” means each of the following:

(A)

The spouse of an individual described in paragraph (1), (2), (3), or (4).

(B)

A parent, stepparent, or parent-in-law of an individual described in paragraph (1) or (3).

(C)

A child (including an adopted child, a stepchild, or, to the extent the Office of Personnel Management by regulation provides, a foster child) of an individual described in paragraph (1), (2), (3), or (4), if such child is at least 18 years of age.

(D)

An individual having such other relationship to an individual described in paragraph (1), (2), (3), or (4) as the Office may by regulation prescribe.

(6)Eligible individual.—

The term “eligible individual” refers to an individual described in paragraph (1), (2), (3), (4), or (5).

(7)Qualified carrier.—

The term “qualified carrier” means an insurance company (or consortium of insurance companies) that is licensed to issue long-term care insurance in allStates, taking any subsidiaries of such a company into account (and, in the case of a consortium, considering the member companies and any subsidiaries thereof, collectively).

(8)State.—

The term “State” includes the District of Columbia.

(9)Qualified long-term care insurance contract.—

The term “qualified long-term care insurance contract” has the meaning given such term by section 7702B of the Internal Revenue Code of 1986.

(10)Appropriate secretary.—The term “appropriate Secretary” means—

(A)

except as otherwise provided in this paragraph, the Secretary of Defense;

(B)

with respect to the Coast Guard when it is not operating as a service of the Navy, the Secretary of Homeland Security;

(C)

with respect to the commissioned corps of the National Oceanic and Atmospheric Administration, the Secretary of Commerce; and

(D)

with respect to the commissioned corps of the Public Health Service, the Secretary of Health and Human Services.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 762; amended Pub. L. 107–104, § 1, Dec. 27, 2001, 115 Stat. 1001; Pub. L. 107–107, div. A, title X, § 1048(i)(6), Dec. 28, 2001, 115 Stat. 1229; Pub. L. 107–314, div. A, title XI, § 1101(a), Dec. 2, 2002, 116 Stat. 2660; Pub. L. 108–7, div. C, title III, § 138(a), Feb. 20, 2003, 117 Stat. 129; Pub. L. 108–136, div. A, title V, § 561, Nov. 24, 2003, 117 Stat. 1482; Pub. L. 109–241, title IX, § 902(a)(3), July 11, 2006, 120 Stat. 566; Pub. L. 109–356, title I, § 117(a)(3), Oct. 16, 2006, 120 Stat. 2027.)

5 - 4 - 7 - 9 - 2 Availability of insurance

(a)In General.—

The Office of Personnel Management shall establish and, in consultation with the appropriate Secretaries, administer a program through which an individual described in paragraph (1), (2), (3), (4), or (5) of section 9001 may obtain long-term care insurance coverage under this chapter for such individual.

(b)Discretionary Authority Regarding Nonappropriated Fund Instrumentalities.—

The Secretary of Defense may determine that a nonappropriated fund instrumentality of the Department of Defense is covered under this chapter or is covered under an alternative long-term care insurance program.

(c)General Requirements.—Long-term care insurance may not be offered under this chapter unless—

(1)

the only coverage provided is under qualified long-term care insurance contracts; and

(2)

each insurance contract under which any such coverage is provided is issued by a qualified carrier.

(d)Documentation Requirement.—

As a condition for obtaining long-term care insurance coverage under this chapter based on one’s status as a qualified relative, an applicant shall provide documentation to demonstrate the relationship, as prescribed by the Office.

(e)Underwriting Standards.—

(1)Disqualifying condition.—

Nothing in this chapter shall be considered to require that long-term care insurance coverage be made available in the case of any individual who would be eligible for benefits immediately.

(2)Spousal parity.—

For the purpose of underwriting standards, a spouse of an individual described in paragraph (1), (2), (3), or (4) of section 9001 shall, as nearly as practicable, be treated like that individual.

(3)Guaranteed issue.—

Nothing in this chapter shall be considered to require that long-term care insurance coverage be guaranteed to an eligible individual.

(4)Requirement that contract be fully insured.—

In addition to the requirements otherwise applicable under section 9001(9), in order to be considered a qualified long-term care insurance contract for purposes of this chapter, a contract must be fully insured, whether through reinsurance with other companies or otherwise.

(5)Higher standards allowable.—

Nothing in this chapter shall, in the case of an individual applying for long-term care insurance coverage under this chapter after the expiration of such individual’s first opportunity to enroll, preclude the application of underwriting standards more stringent than those that would have applied if that opportunity had not yet expired.

(f)Guaranteed Renewability.—

The benefits and coverage made available to eligible individuals under any insurance contract under this chapter shall be guaranteed renewable (as defined by section 7A(2) of the model regulations described in section 7702B(g)(2) of the Internal Revenue Code of 1986), including the right to have insurance remain in effect so long as premiums continue to be timely made. However, the authority to revise premiums under this chapter shall be available only on a class basis and only to the extent otherwise allowable under section 9003(b).

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 764; amended Pub. L. 107–314, div. A, title XI, § 1101(b), Dec. 2, 2002, 116 Stat. 2660.)

5 - 4 - 7 - 9 - 3 Contracting authority

(a)In General.—

The Office of Personnel Management shall, without regard to section 6101(b) to (d) of title 41 or any other statute requiring competitive bidding, contract with one or more qualified carriers for a policy or policies of long-term care insurance. The Office shall ensure that each resulting contract (hereafter in this chapter referred to as a “master contract”) is awarded on the basis of contractor qualifications, price, and reasonable competition.

(b)Terms and Conditions.—

(1)In general.—Each master contract under this chapter shall contain—

(A)

a detailed statement of the benefits offered (including any maximums, limitations, exclusions, and other definitions of benefits);

(B)

the premiums charged (including any limitations or other conditions on their subsequent adjustment);

(C)

the terms of the enrollment period; and

(D)

such other terms and conditions as may be mutually agreed to by the Office and the carrier involved, consistent with the requirements of this chapter.

(2)Premiums.—

Premiums charged under each master contract entered into under this section shall reasonably and equitably reflect the cost of the benefits provided, as determined by the Office. The premiums shall not be adjusted during the term of the contract unless mutually agreed to by the Office and the carrier.

(3)Nonrenewability.—

Master contracts under this chapter may not be made automatically renewable.

(c)Payment of Required Benefits; Dispute Resolution.—

(1)In general.—Each master contract under this chapter shall require the carrier to agree—

(A)

to provide payments or benefits to an eligible individual if such individual is entitled thereto under the terms of the contract; and

(B)with respect to disputes regarding claims for payments or benefits under the terms of the contract—

(i)

to establish internal procedures designed to expeditiously resolve such disputes; and

(ii)

to establish, for disputes not resolved through procedures under clause (i), procedures for one or more alternative means of dispute resolution involving independent third-party review under appropriate circumstances by entities mutually acceptable to the Office and the carrier.

(2)Eligibility.—

A carrier’s determination as to whether or not a particular individual is eligible to obtain long-term care insurance coverage under this chapter shall be subject to review only to the extent and in the manner provided in the applicable master contract.

(3)Other claims.—For purposes of applying chapter 71 of title 41 to disputes arising under this chapter between a carrier and the Office—

(A)

(B)

the district courts of the United States shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of any action described in section 7104(b)(1) of title 41 relative to such a dispute.

(4)Rule of construction.—

Nothing in this chapter shall be considered to grant authority for the Office or a third-party reviewer to change the terms of any contract under this chapter.

(d)Duration.—

(1)In general.—

Each master contract under this chapter shall be for a term of 7 years, unless terminated earlier by the Office in accordance with the terms of such contract. However, the rights and responsibilities of the enrolled individual, the insurer, and the Office (or duly designated third-party administrator) under such contract shall continue with respect to such individual until the termination of coverage of the enrolled individual or the effective date of a successor contract thereto.

(2)Exception.—

(A)Shorter duration.—

In the case of a master contract entered into before the end of the period described in subparagraph (B), paragraph (1) shall be applied by substituting “ending on the last day of the 7-year period described in paragraph (2)(B)” for “of 7 years”.

(B)Definition.—

The period described in this subparagraph is the 7-year period beginning on the earliest date as of which any long-term care insurance coverage under this chapter becomes effective.

(3)Congressional notification.—

No later than 180 days after receiving the second report required under section 9006(c), the President (or his designee) shall submit to the Committees on Government Reform and on Armed Services of the House of Representatives and the Committees on Governmental Affairs and on Armed Services of the Senate, a written recommendation as to whether the program under this chapter should be continued without modification, terminated, or restructured. During the 180-day period following the date on which the President (or his designee) submits the recommendation required under the preceding sentence, the Office of Personnel Management may not take any steps to rebid or otherwise contract for any coverage to be available at any time following the expiration of the 7-year period described in paragraph (2)(B).

(4)Full portability.—

Each master contract under this chapter shall include such provisions as may be necessary to ensure that, once an individual becomes duly enrolled, long-term care insurance coverage obtained by such individual pursuant to that enrollment shall not be terminated due to any change in status (such as separation from Government service or the uniformed services) or ceasing to meet the requirements for being considered a qualified relative (whether as a result of dissolution of marriage or otherwise).

(e)Effect of Government Shutdown.—

Coverage under a master contract under this chapter for long-term care insurance for an employee or member of the uniformed services enrolled under such contract and who, due to a lapse in appropriations, is furloughed or excepted from furlough and working without pay shall continue during such lapse and may not be cancelled as a result of nonpayment of premiums or other periodic charges due to such lapse.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 764; amended Pub. L. 111–350, § 5(a)(18), Jan. 4, 2011, 124 Stat. 3842; Pub. L. 116–92, div. A, title XI, § 1111(a)(3), Dec. 20, 2019, 133 Stat. 1601.)

5 - 4 - 7 - 9 - 4 Financing

(a)In General.—

Each eligible individual obtaining long-term care insurance coverage under this chapter shall be responsible for 100 percent of the premiums for such coverage.

(b)Withholdings.—

(1)In general.—The amount necessary to pay the premiums for enrollment may—

(A)

in the case of an employee, be withheld from the pay of such employee;

(B)

in the case of an annuitant, be withheld from the annuity of such annuitant;

(C)

in the case of a member of the uniformed services described in section 9001(3), be withheld from the pay of such member; and

(D)

in the case of a retired member of the uniformed services described in section 9001(4), be withheld from the retired pay or retainer pay payable to such member.

(2)Voluntary withholdings for qualified relatives.—

Withholdings to pay the premiums for enrollment of a qualified relative may, upon election of the appropriate eligible individual (described in section 9001(1)–(4)), be withheld under paragraph (1) to the same extent and in the same manner as if enrollment were for such individual.

(c)Direct Payments.—

All amounts withheld under this section shall be paid directly to the carrier.

(d)Other Forms of Payment.—

Any enrollee who does not elect to have premiums withheld under subsection (b) or whose pay, annuity, or retired or retainer pay (as referred to in subsection (b)(1)) is insufficient to cover the withholding required for enrollment (or who is not receiving any regular amounts from the Government, as referred to in subsection (b)(1), from which any such withholdings may be made, and whose premiums are not otherwise being provided for under subsection (b)(2)) shall pay an amount equal to the full amount of those charges directly to the carrier.

(e)Separate Accounting Requirement.—

Each carrier participating under this chapter shall maintain records that permit it to account for all amounts received under this chapter (including investment earnings on those amounts) separate and apart from all other funds.

(f)Reimbursements.—

(1)Reasonable initial costs.—

(A)In general.—

The Employees’ Life Insurance Fund is available, without fiscal year limitation, for reasonable expenses incurred by the Office of Personnel Management in administering this chapter before the start of the 7-year period described in section 9003(d)(2)(B), including reasonable implementation costs.

(B)Reimbursement requirement.—

Such Fund shall be reimbursed, before the end of the first year of that 7-year period, for all amounts obligated or expended under subparagraph (A) (including lost investment income). Such reimbursement shall be made by carriers, on a pro rata basis, in accordance with appropriate provisions which shall be included in master contracts under this chapter.

(2)Subsequent costs.—

(A)In general.—

There is hereby established in the Employees’ Life Insurance Fund a Long-Term Care Administrative Account, which shall be available to the Office, without fiscal year limitation, to defray reasonable expenses incurred by the Office in administering this chapter after the start of the 7-year period described in section 9003(d)(2)(B).

(B)Reimbursement requirement.—

Each master contract under this chapter shall include appropriate provisions under which the carrier involved shall, during each year, make such periodic contributions to the Long-Term Care Administrative Account as necessary to ensure that the reasonable anticipated expenses of the Office in administering this chapter during such year (adjusted to reconcile for any earlier overestimates or underestimates under this subparagraph) are defrayed.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 766.)

5 - 4 - 7 - 9 - 5 Preemption

(a)Contractual Provisions.—

(b)Premiums.—

(1)In general.—

No tax, fee, or other monetary payment may be imposed or collected, directly or indirectly, by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, on, or with respect to, any premium paid for an insurance policy under this chapter.

(2)Rule of construction.—

Paragraph (1) shall not be construed to exempt any company or other entity issuing a policy of insurance under this chapter from the imposition, payment, or collection of a tax, fee, or other monetary payment on the net income or profit accruing to or realized by such entity from business conducted under this chapter, if that tax, fee, or payment is applicable to a broad range of business activity.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768; amended Pub. L. 107–104, § 2, Dec. 27, 2001, 115 Stat. 1001.)

5 - 4 - 7 - 9 - 6 Studies, reports, and audits

(a)Provisions Relating to Carriers.—Each master contract under this chapter shall contain provisions requiring the carrier—

(1)

to furnish such reasonable reports as the Office of Personnel Management determines to be necessary to enable it to carry out its functions under this chapter; and

(2)

to permit the Office and representatives of the Government Accountability Office to examine such records of the carrier as may be necessary to carry out the purposes of this chapter.

(b)Provisions Relating to Federal Agencies.—

Each Federal agency shall keep such records, make such certifications, and furnish the Office, the carrier, or both, with such information and reports as the Office may require.

(c)Reports by the Government Accountability Office.—

The Government Accountability Office shall prepare and submit to the President, the Office of Personnel Management, and each House of Congress, before the end of the third and fifth years during which the program under this chapter is in effect, a written report evaluating such program. Each such report shall include an analysis of the competitiveness of the program, as compared to both group and individual coverage generally available to individuals in the private insurance market. The Office shall cooperate with the Government Accountability Office to provide periodic evaluations of the program.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

5 - 4 - 7 - 9 - 7 Jurisdiction of courts

The district courts of the United States have original jurisdiction of a civil action or claim described in paragraph (1) or (2) of section 9003(c), after such administrative remedies as required under such paragraph (1) or (2) (as applicable) have been exhausted, but only to the extent judicial review is not precluded by any dispute resolution or other remedy under this chapter.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768.)

5 - 4 - 7 - 9 - 8 Administrative functions

(a)In General.—

The Office of Personnel Management shall prescribe regulations necessary to carry out this chapter.

(b)Enrollment Periods.—

The Office shall provide for periodic coordinated enrollment, promotion, and education efforts in consultation with the carriers.

(c)Consultation.—

Any regulations necessary to effect the application and operation of this chapter with respect to an eligible individual described in paragraph (3) or (4) of section 9001, or a qualified relative thereof, shall be prescribed by the Office in consultation with the appropriate Secretary.

(d)Informed Decisionmaking.—The Office shall ensure that each eligible individualapplying for long-term care insurance under this chapter is furnished the information necessary to enable that individual to evaluate the advantages and disadvantages of obtaining long-term care insurance under this chapter, including the following:

(1)

The principal long-term care benefits and coverage available under this chapter, and how those benefits and coverage compare to the range of long-term care benefits and coverage otherwise generally available.

(2)Representative examples of the cost of long-term care, and the sufficiency of the benefits available under this chapter relative to those costs. The information under this paragraph shall also include—

(A)

the projected effect of inflation on the value of those benefits; and

(B)

a comparison of the inflation-adjusted value of those benefits to the projected future costs of long-term care.

(3)Any rights individuals under this chapter may have to cancel coverage, and to receive a total or partial refund of premiums. The information under this paragraph shall also include—

(A)

the projected number or percentage of individuals likely to fail to maintain their coverage (determined based on lapse rates experienced under similar group long-term care insurance programs and, when available, this chapter); and

(B)

(i)

a summary description of how and when premiums for long-term care insurance under this chapter may be raised;

(ii)

the premium history during the last 10 years for each qualified carrier offering long-term care insurance under this chapter; and

(iii)

if cost increases are anticipated, the projected premiums for a typical insured individual at various ages.

(4)

The advantages and disadvantages of long-term care insurance generally, relative to other means of accumulating or otherwise acquiring the assets that may be needed to meet the costs of long-term care, such as through tax-qualified retirement programs or other investment vehicles.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 768.)

5 - 4 - 7 - 9 - 9 Cost accounting standards

The cost accounting standards issued pursuant to section 1502(a) and (b) of title 41 shall not apply with respect to a long-term care insurance contract under this chapter.

(Added Pub. L. 106–265, title I, § 1002(a), Sept. 19, 2000, 114 Stat. 769; amended Pub. L. 111–350, § 5(a)(19), Jan. 4, 2011, 124 Stat. 3842.)

5 - 4 - 8 Access to Criminal History Record Information (§ 9101)

5 - 4 - 8 - 1 ACCESS TO CRIMINAL HISTORY RECORDS FOR NATIONAL SECURITY AND OTHER PURPOSES (§ 9101)

5 - 4 - 8 - 1 - 1 Access to criminal history records for national security and other purposes

(a)As used in this section:

(1)

The term “criminal justice agency” means (A) any Federal, State, or local court, and (B) any Federal, State, or local agency, or any subunit thereof, which performs the administration of criminal justice pursuant to a statute or Executive order, and which allocates a substantial part of its annual budget to the administration of criminal justice.

(2)

The term “criminal history record information” means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release. The term does not include identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system. The term includes those records of a State or locality sealed pursuant to law if such records are accessible by State and local criminal justice agencies for the purpose of conducting background checks.

(3)

The term “classified information” means information or material designated pursuant to the provisions of a statute or Executive order as requiring protection against unauthorized disclosure for reasons of national security.

(4)

The term “State” means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, the Virgin Islands, American Samoa, and any other territory or possession of the United States.

(5)

The term “local” and “locality” means any local government authority or agency or component thereof within a State having jurisdiction over matters at a county, municipal, or other local government level.

(6)The term “covered agency” means any of the following:

(A)

The Department of Defense.

(B)

The Department of State.

(C)

The Department of Transportation.

(D)

The Office of Personnel Management.

(E)

The Central Intelligence Agency.

(F)

The Federal Bureau of Investigation.

(G)

The Department of Homeland Security.

(H)

The Office of the Director of National Intelligence.

(I)An Executive agency that—

(i)

is authorized to conduct background investigations under a Federal statute; or

(ii)

is delegated authority to conduct background investigations in accordance with procedures established by the Security Executive Agent or the Suitability Executive Agent under subsection (b) or (c)(iv) of section 2.3 of Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto.

(J)

A contractor that conducts a background investigation on behalf of an agency described in subparagraphs (A) through (I).

(7)

The terms “Security Executive Agent” and “Suitability Executive Agent” mean the Security Executive Agent and the Suitability Executive Agent, respectively, established under Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto.

(b)

(1)Upon request by a covered agency, criminal justice agencies shall make available all criminal history record information regarding individuals under investigation by that covered agency, in accordance with Federal Investigative Standards jointly promulgated by the Suitability Executive Agent and Security Executive Agent, for the purpose of—

(A)determining eligibility for—

(i)

access to classified information;

(ii)

assignment to or retention in sensitive national security duties or positions;

(iii)

acceptance or retention in the armed forces; or

(iv)

appointment, retention, or assignment to a position of public trust while either employed by the Government or performing a Government contract; or

(B)conducting a basic suitability or fitness assessment for Federal or contractor employees, using Federal Investigative Standards jointly promulgated by the Security Executive Agent and the Suitability Executive Agent in accordance with—

(i)

Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto; and

(ii)

the Office of Management and Budget Memorandum “Assignment of Functions Relating to Coverage of Contractor Employee Fitness in the Federal Investigative Standards”, dated December 6, 2012;

(C)

credentialing under the Homeland Security Presidential Directive 12 (dated August 27, 2004); and

(D)Federal Aviation Administration checks required under—

(i)

the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (subtitle E of title VII of Public Law 100–690; 102 Stat. 4424) and the amendments made by that Act; or

(ii)

section 44710 of title 49.

(2)

(A)

A State central criminal history record depository shall allow a covered agency to conduct both biometric and biographic searches of criminal history record information.

(B)

Nothing in subparagraph (A) shall be construed to prohibit the Federal Bureau of Investigation from requiring a request for criminal history record information to be accompanied by the fingerprints of the individual who is the subject of the request.

(3)

Fees, if any, charged for providing criminal history record informationpursuant to this subsection shall not exceed the reasonable cost of providing such information.

(4)

This subsection shall apply notwithstanding any other provision of law or regulation of any State or of any locality within a State, or any other law of the United States.

(c)

A covered agency shall not obtain criminal history record informationpursuant to this section unless it has received written consent from the individual under investigation for the release of such information for the purposes set forth in paragraph (b)(1).

(d)

Criminal history record information received under this section shall be disclosed or used only for the purposes set forth in paragraph (b)(1) or for national security or criminal justice purposes authorized by law, and such information shall be made available to the individual who is the subject of such information upon request.

(e)

(1)

Automated information delivery systems shall be used to provide criminal history record information to a covered agency under subsection (b) whenever available.

(2)

Fees, if any, charged for automated access through such systems may not exceed the reasonable cost of providing such access.

(3)

The criminal justice agency providing the criminal history record information through such systems may not limit disclosure on the basis that the repository is accessed from outside the State.

(4)

Information provided through such systems shall be the full and complete criminal history record.

(5)

Criminal justice agencies shall accept and respond to requests for criminal history record information through such systems with printed or photocopied records when requested.

(6)

If a criminal justice agency is able to provide the same information through more than 1 system described in paragraph (1), a covered agency may request information under subsection (b) from the criminal justice agency, and require the criminal justice agency to provide the information, using the system that is most cost-effective for the Federal Government.

(f)

The authority provided under this section with respect to the Department of State may be exercised only so long as the Department of State continues to extend to its employees and applicants for employment, at a minimum, those procedural safeguards provided for as part of the security clearance process that were made available, as of May 1, 1987, pursuant to section 163.4 of volume 3 of the Foreign Affairs Manual.

(g)

Upon request by a covered agency and in accordance with the applicable provisions of this section, the Deputy Assistant Secretary of State for Overseas Citizens Services shall make available criminal history record informationcollected by the Deputy Assistant Secretary with respect to an individual who is under investigation by the covered agency regarding any interaction of the individual with a law enforcement agency or intelligence agency of a foreign country.

(h)

If a contractor described in subsection (a)(6)(J) uses an automated information delivery system to request criminal history record information, the contractor shall comply with any necessary security requirements for access to that system.

(i)The Suitability and Security Clearance Performance Accountability Council established under Executive Order 13467 (73 Fed. Reg. 38103), or any successor thereto, shall submit to the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate, and the Committee on Armed Services, the Committee on Oversight and Government Reform, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives, an annual report that—

(1)

describes efforts of the Council to integrate Federal, State, and localsystems for sharing criminal history record information;

(2)

analyzes the extent and effectiveness of Federal education programs regarding criminal history record information;

(3)

provides an update on the implementation of best practices for sharing criminal history record information, including ongoing limitations experienced by investigators working for or on behalf of a covered agency with respect to access to State and local criminal history record information; and

(4)provides a description of limitations on the sharing of information relevant to a background investigation, other than criminal history record information, between—

(A)

investigators working for or on behalf of a covered agency; and

(B)

State and local law enforcement agencies.

(Added Pub. L. 99–169, title VIII, § 801(a), Dec. 4, 1985, 99 Stat. 1009; amended Pub. L. 99–569, title IV, § 402(a), Oct. 27, 1986, 100 Stat. 3196; Pub. L. 101–246, title I, § 114, Feb. 16, 1990, 104 Stat. 22; Pub. L. 106–398, § 1 [[div. A], title X, § 1076(a)–(e), (f)(2)(A)], Oct. 30, 2000, 114 Stat. 1654, 1654A–280 to 1654A–282; Pub. L. 114–92, div. A, title X, § 1086(f)(1)–(6)(A), (7), (8), (10), Nov. 25, 2015, 129 Stat. 1008–1011.)

5 - 4 - 9 Miscellaneous (§§ 9501 to 10210)

5 - 4 - 9 - 1 PERSONNEL FLEXIBILITIES RELATING TO THE INTERNAL REVENUE SERVICE (§§ 9501 to 9510)

5 - 4 - 9 - 1 - 1 Internal Revenue Service personnel flexibilities

(a)Any flexibilities provided by sections 9502 through 9510 of this chapter shall be exercised in a manner consistent with—

(1)

chapter 23 (relating to merit system principles and prohibited personnel practices);

(2)

provisions relating to preference eligibles;

(3)

except as otherwise specifically provided, section 5307 (relating to the aggregate limitation on pay);

(4)

except as otherwise specifically provided, chapter 71 (relating to labor-management relations); and

(5)

subject to subsections (b) and (c) of section 1104, as though such authorities were delegated to the Secretary of the Treasury under section 1104(a)(2).

(b)

The Secretary of the Treasury shall provide the Office of Personnel Management with any information that Office requires in carrying out its responsibilities under this section.

(c)

Employees within a unit to which a labor organization is accorded exclusive recognition under chapter 71 shall not be subject to any flexibility provided by sections 9507 through 9510 of this chapter unless the exclusive representative and the Internal Revenue Service have entered into a written agreement which specifically provides for the exercise of that flexibility. Such written agreement may be imposed by the Federal Services Impasses Panel under section 7119.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 712.)

5 - 4 - 9 - 1 - 2 Pay authority for critical positions

(a)

When the Secretary of the Treasury seeks a grant of authority under section 5377 for critical pay for 1 or more positions at the Internal Revenue Service, the Office of Personnel Management may fix the rate of basic pay, notwithstanding sections 5377(d)(2) and 5307, at any rate up to the salary set in accordance with section 104 of title 3.

(b)

Notwithstanding section 5307, no allowance, differential, bonus, award, or similar cash payment may be paid to any employee receiving critical pay at a rate fixed under subsection (a), in any calendar year if, or to the extent that, the employee’s total annual compensation will exceed the maximum amount of total annual compensation payable at the salary set in accordance with section 104 of title 3.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 712; amended Pub. L. 110–161, div. D, title I, § 107, Dec. 26, 2007, 121 Stat. 1977.)

5 - 4 - 9 - 1 - 3 Streamlined critical pay authority

(a)Notwithstanding section 9502, and without regard to the provisions of this title governing appointments in the competitive service or the Senior Executive Service and chapters 51 and 53 (relating to classification and pay rates), the Secretary of the Treasury may, Before [1] September 30, 2013, establish, fix the compensation of, and appoint individuals to, designated critical administrative, technical, and professional positions needed to carry out the functions of the Internal Revenue Service, if—

(1)the positions—

(A)

require expertise of an extremely high level in an administrative, technical, or professional field; and

(B)

are critical to the Internal Revenue Service’s successful accomplishment of an important mission;

(2)

exercise of the authority is necessary to recruit or retain an individual exceptionally well qualified for the position;

(3)

the number of such positions does not exceed 40 at any one time;

(4)

designation of such positions are approved by the Secretary of the Treasury;

(5)

the terms of such appointments are limited to no more than 4 years;

(6)

appointees to such positions were not Internal Revenue Serviceemployees prior to June 1, 1998;

(7)

total annual compensation for any appointee to such positions does not exceed the highest total annual compensation payable at the rate determined under section 104 of title 3; and

(8)

all such positions are excluded from the collective bargaining unit.

(b)

Individuals appointed under this section shall not be considered to be employees for purposes of subchapter II of chapter 75.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 712; amended Pub. L. 110–161, div. D, title I, § 105, Dec. 26, 2007, 121 Stat. 1977; Pub. L. 113–6, div. F, title III, § 1309, Mar. 26, 2013, 127 Stat. 418.)

5 - 4 - 9 - 1 - 4 Recruitment, retention, relocation incentives, and relocation expenses

(a)

Before September 30, 2013 and subject to approval by the Office of Personnel Management, the Secretary of the Treasury may provide for variations from sections 5753 and 5754 governing payment of recruitment, relocation, and retention incentives.

(b)

Before September 30, 2013, the Secretary of the Treasury may pay from appropriations made to the Internal Revenue Service allowable relocation expenses under section 5724a for employees transferred or reemployed and allowable travel and transportation expenses under section 5723 for new appointees, for any new appointee appointed to a position for which pay is fixed under section 9502 or 9503 after June 1, 1998.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 713; amended Pub. L. 110–161, div. D, title I, § 106, Dec. 26, 2007, 121 Stat. 1977; Pub. L. 113–6, div. F, title III, § 1309, Mar. 26, 2013, 127 Stat. 418.)

5 - 4 - 9 - 1 - 5 Performance awards for senior executives

(a)

Before September 30, 2013, Internal Revenue Service senior executives who have program management responsibility over significant functions of the Internal Revenue Service may be paid a performance bonus without regard to the limitation in section 5384(b)(2) if the Secretary of the Treasury finds such award warranted based on the executive’s performance.

(b)

In evaluating an executive’s performance for purposes of an award under this section, the Secretary of the Treasury shall take into account the executive’s contributions toward the successful accomplishment of goals and objectives established under the Government Performance and Results Act of 1993, subtitle III of title 40, Revenue Procedure 64–22 (as in effect on July 30, 1997), taxpayer service surveys, and other performance metrics or plans established in consultation with the Internal Revenue Service Oversight Board.

(c)

Any award in excess of 20 percent of an executive’s rate of basic pay shall be approved by the Secretary of the Treasury.

(d)

Notwithstanding section 5384(b)(3), the Secretary of the Treasury shall determine the aggregate amount of performance awards available to be paid during any fiscal year under this section and section 5384 to career senior executives in the Internal Revenue Service. Such amount may not exceed the maximum amount which would be allowable under paragraph (3) of section 5384(b) if such paragraph were applied by substituting “the Internal Revenue Service” for “an agency”. The Internal Revenue Service shall not be included in the determination under section 5384(b)(3) of the aggregate amount of performance awards payable to career senior executives in the Department of the Treasury other than the Internal Revenue Service.

(e)

Notwithstanding section 5307, a performance bonus award may not be paid to an executive in a calendar year if, or to the extent that, the executive’s total annual compensation will exceed the maximum amount of total annual compensation payable at the rate determined under section 104 of title 3.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 713; amended Pub. L. 107–217, § 3(a)(2), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–7, div. J, title VI, § 645(a), Feb. 20, 2003, 117 Stat. 474; Pub. L. 110–161, div. D, title I, § 106, Dec. 26, 2007, 121 Stat. 1977; Pub. L. 113–6, div. F, title III, § 1309, Mar. 26, 2013, 127 Stat. 418.)

5 - 4 - 9 - 1 - 6 Limited appointments to career reserved Senior Executive Service positions

(a)In the application of section 3132, a “career reserved position” in the Internal Revenue Service means a position designated under section 3132(b) which may be filled only by—

(1)

a career appointee; or

(2)a limited emergency appointee or a limited term appointee—

(A)

who, immediately upon entering the career reserved position, was serving under a career or career-conditional appointment outside the Senior Executive Service; or

(B)

whose limited emergency or limited term appointment is approved in advance by the Office of Personnel Management.

(b)

(1)

The number of positions described under subsection (a) which are filled by an appointee as described under paragraph (2) of such subsection may not exceed 10 percent of the total number of Senior Executive Service positions in the Internal Revenue Service.

(2)Notwithstanding section 3132—

(A)

the term of an appointee described under subsection (a)(2) may be for any period not to exceed 3 years; and

(B)such an appointee may serve—

(i)

two such terms; or

(ii)

two such terms in addition to any unexpired term applicable at the time of appointment.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 714.)

5 - 4 - 9 - 1 - 7 Streamlined demonstration project authority

(a)

The exercise of any of the flexibilities under sections 9502 through 9510 shall not affect the authority of the Secretary of the Treasury to implement for the Internal Revenue Service a demonstration project subject to chapter 47, as provided in subsection (b).

(b)In applying section 4703 to a demonstration project described in section 4701(a)(4) which involves the Internal Revenue Service—

(1)

section 4703(b)(1) shall be deemed to read as follows:

“(1)

develop a plan for such project which describes its purpose, the employees to be covered, the project itself, its anticipated outcomes, and the method of evaluating the project;”;

(2)

section 4703(b)(3) shall not apply;

(3)

the 180-day notification period in section 4703(b)(4) shall be deemed to be a notification period of 30 days;

(4)

section 4703(b)(6) shall be deemed to read as follows:

“(6)

provides each House of Congress with the final version of the plan.”;

(5)

section 4703(c)(1) shall be deemed to read as follows:

“(1)

subchapter V of chapter 63 or subpart G of part III of this title;”;

(6)

the requirements of paragraphs (1)(A) and (2) of section 4703(d) shall not apply; and

(7)

notwithstanding section 4703(d)(1)(B), based on an evaluation as provided in section 4703(h), the Office of Personnel Management and the Secretary of the Treasury, except as otherwise provided by this subsection, may waive the termination date of a demonstration project under section 4703(d).

(c)

At least 90 days before waiving the termination date under subsection (b)(7), the Office of Personnel Management shall publish in the Federal Register a notice of its intention to waive the termination date and shall inform in writing both Houses of Congress of its intention.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 715.)

5 - 4 - 9 - 1 - 8 General workforce performance management system

(a)In lieu of a performance appraisal system established under section 4302, the Secretary of the Treasury shall, within 1 year after the date of enactment of this section, establish for the Internal Revenue Service a performance management system that—

(1)maintains individual accountability by—

(A)

establishing one or more retention standards for each employee related to the work of the employee and expressed in terms of individual performance, and communicating such retention standards to employees;

(B)

making periodic determinations of whether each employee meets or does not meet the employee’s established retention standards; and

(C)taking actions, in accordance with applicable laws and regulations, with respect to any employee whose performance does not meet established retention standards, including denying any increases in basic pay, promotions, and credit for performance under section 3502, and taking one or more of the following actions:

(i)

Reassignment.

(ii)

An action under chapter 43 or chapter 75 of this title.

(iii)

Any other appropriate action to resolve the performance problem; and

(2)except as provided under section 1204 of the Internal Revenue Service Restructuring and Reform Act of 1998, strengthens the system’s effectiveness by—

(A)

establishing goals or objectives for individual, group, or organizational performance (or any combination thereof), consistent with the Internal Revenue Service’s performance planning procedures, including those established under the Government Performance and Results Act of 1993, subtitle III of title 40, Revenue Procedure 64–22 (as in effect on July 30, 1997), and taxpayer service surveys, and communicating such goals or objectives to employees;

(B)

using such goals and objectives to make performance distinctions among employees or groups of employees; and

(C)

using performance assessments as a basis for granting employee awards, adjusting an employee’s rate of basic pay, and other appropriate personnel actions, in accordance with applicable laws and regulations.

(b)

(1)

For purposes of subsection (a)(2), the term “performance assessment” means a determination of whether or not retention standards established under subsection (a)(1)(A) are met, and any additional performance determination made on the basis of performance goals and objectives established under subsection (a)(2)(A).

(2)

For purposes of this title, the term “unacceptable performance” with respect to an employee of the Internal Revenue Service covered by a performance management system established under this section means performance of the employee which fails to meet a retention standard established under this section.

(c)

(1)

The Secretary of the Treasury may establish an awards program designed to provide incentives for and recognition of organizational, group, and individual achievements by providing for granting awards to employees who, as individuals or members of a group, contribute to meeting the performance goals and objectives established under this chapter by such means as a superior individual or group accomplishment, a documented productivity gain, or sustained superior performance.

(2)

A cash award under subchapter I of chapter 45 may be granted to an employee of the Internal Revenue Service without the need for any approval under section 4502(b).

(d)

(1)

In applying sections 4303(b)(1)(A) and 7513(b)(1) to employees of the Internal Revenue Service, “30 days” may be deemed to be “15 days”.

(2)

Notwithstanding the second sentence of section 5335(c), an employee of the Internal Revenue Service shall not have a right to appeal the denial of a periodic step increase under section 5335 to the Merit Systems Protection Board.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 715; amended Pub. L. 107–217, § 3(a)(3), Aug. 21, 2002, 116 Stat. 1295.)

5 - 4 - 9 - 1 - 9 General workforce classification and pay

(a)

For purposes of this section, the term “broad-banded system” means a system for grouping positions for pay, job evaluation, and other purposes that is different from the system established under chapter 51 and subchapter III of chapter 53 as a result of combining grades and related ranges of rates of pay in one or more occupational series.

(b)

(1)

(A)

The Secretary of the Treasury may, subject to criteria to be prescribed by the Office of Personnel Management, establish one or more broad-banded systems covering all or any portion of the Internal Revenue Service workforce.

(B)

With the approval of the Office of Personnel Management, a broad-banded system established under this section may either include or consist of positions that otherwise would be subject to subchapter IV of chapter 53 or section 5376.

(2)

The Office of Personnel Management may require the Secretary of the Treasury to submit information relating to broad-banded systems at the Internal Revenue Service.

(3)

Except as otherwise provided under this section, employees under a broad-banded system shall continue to be subject to the laws and regulations covering employees under the pay system that otherwise would apply to such employees.

(4)The criteria to be prescribed by the Office of Personnel Managementshall, at a minimum—

(A)

ensure that the structure of any broad-banded system maintains the principle of equal pay for substantially equal work;

(B)

establish the minimum and maximum number of grades that may be combined into pay bands;

(C)

establish requirements for setting minimum and maximum rates of pay in a pay band;

(D)

establish requirements for adjusting the pay of an employee within a pay band;

(E)

establish requirements for setting the pay of a supervisory employee whose position is in a pay band or who supervises employees whose positions are in pay bands; and

(F)

establish requirements and methodologies for setting the pay of an employee upon conversion to a broad-banded system, initial appointment, change of position or type of appointment (including promotion, demotion, transfer, reassignment, reinstatement, placement in another pay band, or movement to a different geographic location), and movement between a broad-banded system and another pay system.

(c)

With the approval of the Office of Personnel Management and in accordance with a plan for implementation submitted by the Secretary of the Treasury, the Secretary may, with respect to Internal Revenue Service employees who are covered by a broad-banded system established under this section, provide for variations from the provisions of subchapter VI of chapter 53.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 716.)

5 - 4 - 9 - 1 - 10 General workforce staffing

(a)

(1)Except as otherwise provided by this section, an employee of the Internal Revenue Service may be selected for a permanent appointment in the competitive service in the Internal Revenue Service through internal competitive promotion procedures if—

(A)

the employee has completed, in the competitive service, 2 years of current continuous service under a term appointment or any combination of term appointments;

(B)

such term appointment or appointments were made under competitive procedures prescribed for permanent appointments;

(C)

the employee’s performance under such term appointment or appointments met established retention standards, or, if not covered by a performance management system established under section 9508, was rated at the fully successful level or higher (or equivalent thereof); and

(D)

the vacancy announcement for the term appointment from which the conversion is made stated that there was a potential for subsequent conversion to a permanent appointment.

(2)

An appointment under this section may be made only to a position in the same line of work as a position to which the employee received a term appointment under competitive procedures.

(b)

(1)

Notwithstanding subchapter I of chapter 33, the Secretary of the Treasury may establish category rating systems for evaluating applicants for Internal Revenue Service positions in the competitive service under which qualified candidates are divided into two or more quality categories on the basis of relative degrees of merit, rather than assigned individual numerical ratings.

(2)

Each applicant who meets the minimum qualification requirements for the position to be filled shall be assigned to an appropriate category based on an evaluation of the applicant’s knowledge, skills, and abilities relative to those needed for successful performance in the position to be filled.

(3)

Within each quality category established under paragraph (1), preference eligibles shall be listed ahead of individuals who are not preference eligibles. For other than scientific and professional positions at or higher than GS–9 (or equivalent), preference eligibles who have a compensable service-connected disability of 10 percent or more, and who meet the minimum qualification standards, shall be listed in the highest quality category.

(4)

An appointing authority may select any applicant from the highest quality category or, if fewer than three candidates have been assigned to the highest quality category, from a merged category consisting of the highest and second highest quality categories.

(5)

Notwithstanding paragraph (4), the appointing authority may not pass over a preference eligible in the same or higher category from which selection is made unless the requirements of section 3317(b) or 3318(c), as applicable, are satisfied.

(c)

The Secretary of the Treasury may detail employees among the offices of the Internal Revenue Service without regard to the 120-day limitation in section 3341(b).

(d)

Notwithstanding any other provision of law, the Secretary of the Treasury may establish a probationary period under section 3321 of up to 3 years for Internal Revenue Service positions if the Secretary of the Treasury determines that the nature of the work is such that a shorter period is insufficient to demonstrate complete proficiency in the position.

(e)Nothing in this section exempts the Secretary of the Treasury from—

(1)

any employment priority established under direction of the President for the placement of surplus or displaced employees; or

(2)

any obligation under a court order or decree relating to the employment practices of the Internal Revenue Service or the Department of the Treasury.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 717; amended Pub. L. 114–137, § 2(c), Mar. 18, 2016, 130 Stat. 312.)

5 - 4 - 9 - 2 PERSONNEL FLEXIBILITIES RELATING TO LAND MANAGEMENT AGENCIES (§§ 9601 to 9602)

5 - 4 - 9 - 2 - 1 Definitions

For purposes of this chapter—

(1)the term “land management agency” means—

(A)

the Forest Service of the Department of Agriculture;

(B)

the Bureau of Land Management of the Department of the Interior;

(C)

the National Park Service of the Department of the Interior;

(D)

the Fish and Wildlife Service of the Department of the Interior;

(E)

the Bureau of Indian Affairs of the Department of the Interior; and

(F)

the Bureau of Reclamation of the Department of the Interior; and

(2)

the term “time-limited appointment” includes a temporary appointment and a term appointment, as defined by the Office of Personnel Management.

(Added Pub. L. 114–47, § 2(a), Aug. 7, 2015, 129 Stat. 485.)

5 - 4 - 9 - 2 - 2 Competitive service; time-limited appointments

(a)Notwithstanding chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, an employee of a land management agency serving under a time-limited appointment in the competitive service is eligible to compete for a permanent appointment in the competitive service at such land management agency when such agency is accepting applications from individuals within the agency’s workforce under merit promotion procedures, or any agency, including a land management agency, when the agency is accepting applications from individuals outside its own workforce under the merit promotion procedures of the applicable agency if—

(1)

the employee was appointed initially under open, competitive examination under subchapter I of chapter 33 to the time-limited appointment;

(2)

the employee has served under 1 or more time-limited appointments by aland management agency for a period or periods totaling more than 24 months without a break of 2 or more years; and

(3)

the employee’s performance has been at an acceptable level of performance throughout the period or periods (as the case may be) referred to in paragraph (2).

(b)

In determining the eligibility of a time-limited employee under this section to be examined for or appointed in the competitive service, the Office of Personnel Management or other examining agency shall waive requirements as to age, unless the requirement is essential to the performance of the duties of the position.

(c)An individual appointed under this section—

(1)

becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and

(2)

acquires competitive status upon appointment.

(d)A former employee of a land management agency who served under a time-limited appointment and who otherwise meets the requirements of this section shall be deemed a time-limited employee of the agency from which the former employee was most recently separated for purposes of this section if—

(1)

such employee applies for a position covered by this section within the period of 2 years after the most recent date of separation; and

(2)

such employee’s most recent separation was for reasons other than misconduct or performance.

(e)

The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out this section.

(Added Pub. L. 114–47, § 2(a), Aug. 7, 2015, 129 Stat. 485; amended Pub. L. 114–328, div. A, title XI, § 1135, Dec. 23, 2016, 130 Stat. 2459.)

5 - 4 - 9 - 3 DEPARTMENT OF HOMELAND SECURITY (§ 9701)

5 - 4 - 9 - 3 - 1 Establishment of human resources management system

(a)In General.—

Notwithstanding any other provision of this part, the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management, establish, and from time to time adjust, a human resources management system for some or all of the organizational units of the Department of Homeland Security.

(b)System Requirements.—Any system established under subsection (a) shall—

(1)

be flexible;

(2)

be contemporary;

(3)not waive, modify, or otherwise affect—

(A)

the public employment principles of merit and fitness set forth in section 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other nonmerit considerations, equal pay for equal work, and protection of employees against reprisal for whistleblowing;

(B)

any provision of section 2302, relating to prohibited personnel practices;

(C)

(i)

any provision of law referred to in section 2302(b)(1), (8), and (9); or

(ii)any provision of law implementing any provision of law referred to in section 2302(b)(1), (8), and (9) by—

(I)

providing for equal employment opportunity through affirmative action; or

(II)

providing any right or remedy available to any employee or applicant for employment in the civil service;

(D)

any other provision of this part (as described in subsection (c)); or

(E)

any rule or regulation prescribed under any provision of law referred to in any of the preceding subparagraphs of this paragraph;

(4)

ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law; and

(5)

permit the use of a category rating system for evaluating applicants for positions in the competitive service.

(c)Other Nonwaivable Provisions.—The other provisions of this part as referred to in subsection (b)(3)(D), are (to the extent not otherwise specified in subparagraph (A), (B), (C), or (D) of subsection (b)(3))—

(1)

subparts A, B, E, G, and H of this part; and

(2)

chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and this chapter.

(d)Limitations Relating to Pay.—Nothing in this section shall constitute authority—

(1)to modify the pay of any employee who serves in—

(A)

an Executive Schedule position under subchapter II of chapter 53 of title 5, United States Code; or

(B)

a position for which the rate of basic pay is fixed in statute by reference to a section or level under subchapter II of chapter 53 of such title 5;

(2)

to fix pay for any employee or position at an annual rate greater than the maximum amount of cash compensation allowable under section 5307 of such title 5 in a year; or

(3)

to exempt any employee from the application of such section 5307.

(e)Provisions to Ensure Collaboration With Employee Representatives.—

(1)In general.—In order to ensure that the authority of this section is exercised in collaboration with, and in a manner that ensures the participation of employee representatives in the planning, development, and implementation of any human resources management system or adjustments to such system under this section, the Secretary of Homeland Security and the Director of the Office of Personnel Management shall provide for the following:

(A)Notice of proposal.—The Secretary and the Director shall, with respect to any proposed system or adjustment—

(i)

provide to each employee representative representing any employees who might be affected, a written description of the proposed system or adjustment (including the reasons why it is considered necessary);

(ii)

give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposal; and

(iii)

give any recommendations received from any such representatives under clause (ii) full and fair consideration in deciding whether or how to proceed with the proposal.

(B)Pre-implementation congressional notification, consultation, and mediation.—Following receipt of recommendations, if any, from employee representatives with respect to a proposal described in subparagraph (A), the Secretary and the Director shall accept such modifications to the proposal in response to the recommendations as they determine advisable and shall, with respect to any parts of the proposal as to which they have not accepted the recommendations—

(i)

notify Congress of those parts of the proposal, together with the recommendations of employee representatives;

(ii)

meet and confer for not less than 30 calendar days with any representatives who have made recommendations, in order to attempt to reach agreement on whether or how to proceed with those parts of the proposal; and

(iii)

at the Secretary’s option, or if requested by a majority of the employee representatives who have made recommendations, use the services of the Federal Mediation and Conciliation Service during such meet and confer period to facilitate the process of attempting to reach agreement.

(C)Implementation.—

(i)

Any part of the proposal as to which the representatives do not make a recommendation, or as to which their recommendations are accepted by the Secretary and the Director, may be implemented immediately.

(ii)

With respect to any parts of the proposal as to which recommendations have been made but not accepted by the Secretary and the Director, at any time after 30 calendar days have elapsed since the initiation of the congressional notification, consultation, and mediation procedures set forth in subparagraph (B), if the Secretary determines, in the Secretary’s sole and unreviewable discretion, that further consultation and mediation is unlikely to produce agreement, the Secretary may implement any or all of such parts, including any modifications made in response to the recommendations as the Secretary determines advisable.

(iii)

The Secretary shall promptly notify Congress of the implementation of any part of the proposal and shall furnish with such notice an explanation of the proposal, any changes made to the proposal as a result of recommendations from employee representatives, and of the reasons why implementation is appropriate under this subparagraph.

(D)Continuing collaboration.—If a proposal described in subparagraph (A) is implemented, the Secretary and the Director shall—

(i)

develop a method for each employee representative to participate in any further planning or development which might become necessary; and

(ii)

give each employee representative adequate access to information to make that participation productive.

(2)Procedures.—Any procedures necessary to carry out this subsection shall be established by the Secretary and the Director jointly as internal rules of departmental procedure which shall not be subject to review. Such procedures shall include measures to ensure—

(A)

in the case of employees within a unit with respect to which a labor organization is accorded exclusive recognition, representation by individuals designated or from among individuals nominated by such organization;

(B)

in the case of any employees who are not within such a unit, representation by any appropriate organization which represents a substantial percentage of those employees or, if none, in such other manner as may be appropriate, consistent with the purposes of the subsection;

(C)

the fair and expeditious handling of the consultation and mediation process described in subparagraph (B) of paragraph (1), including procedures by which, if the number of employee representatives providing recommendations exceeds 5, such representatives select a committee or other unified representative with which the Secretary and Director may meet and confer; and

(D)

the selection of representatives in a manner consistent with the relative number of employees represented by the organizations or other representatives involved.

(f)Provisions Relating to Appellate Procedures.—

(1)Sense of congress.—It is the sense of Congress that—

(A)

employees of the Department are entitled to fair treatment in any appeals that they bring in decisions relating to their employment; and

(B)in prescribing regulations for any such appeals procedures, the Secretary and the Director of the Office of Personnel Management—

(i)

should ensure that employees of the Department are afforded the protections of due process; and

(ii)

toward that end, should be required to consult with the Merit Systems Protection Board before issuing any such regulations.

(2)Requirements.—Any regulations under this section which relate to any matters within the purview of chapter 77—

(A)

shall be issued only after consultation with the Merit Systems Protection Board;

(B)shall ensure the availability of procedures which shall—

(i)

be consistent with requirements of due process; and

(ii)

provide, to the maximum extent practicable, for the expeditious handling of any matters involving the Department; and

(C)

shall modify procedures under chapter 77 only insofar as such modifications are designed to further the fair, efficient, and expeditious resolution of matters involving the employees of the Department.

(g)Provisions Relating to Labor-Management Relations.—

Nothing in this section shall be construed as conferring authority on the Secretary of Homeland Security to modify any of the provisions of section 842 of the Homeland Security Act of 2002.

(h)Sunset Provision.—

Effective 5 years after the conclusion of the transition period defined under section 1501 of the Homeland Security Act of 2002, all authority to issue regulations under this section (including regulations which would modify, supersede, or terminate any regulations previously issued under this section) shall cease to be available.

(Added Pub. L. 107–296, title VIII, § 841(a)(2), Nov. 25, 2002, 116 Stat. 2230.)

5 - 4 - 9 - 4 NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (§§ 9801 to 9815)

5 - 4 - 9 - 4 - 1 Definitions

For purposes of this chapter—

(1)

the term “Administration” means the National Aeronautics and Space Administration;

(2)

the term “Administrator” means the Administrator of the National Aeronautics and Space Administration;

(3)the term “critical need” means a specific and important safety, management, engineering, science, research, or operations requirement of the Administration’s mission that the Administration is unable to fulfill because the Administration lacks the appropriate employees because—

(A)

of the inability to fill positions; or

(B)

employees do not possess the requisite skills;

(4)

the term “employee” means an individual employed in or under the Administration;

(5)

the term “workforce plan” means the plan required under section 9802(a);

(6)the term “appropriate committees of Congress” means—

(A)

the Committees on Government Reform, Science, and Appropriations of the House of Representatives; and

(B)

the Committees on Governmental Affairs, Commerce, Science, and Transportation, and Appropriations of the Senate;

(7)

the term “redesignation bonus” means a bonus under section 9804 paid to an individual described in subsection (a)(2) thereof;

(8)

the term “supervisor” has the meaning given such term by section 7103(a)(10); and

(9)

the term “management official” has the meaning given such term by section 7103(a)(11).

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 461.)

5 - 4 - 9 - 4 - 2 Planning, notification, and reporting requirements

(a)

Not later than 90 days before exercising any of the workforce authorities made available under this chapter, the Administrator shall submit a written plan to the appropriate committees of Congress. Such plan shall be approved by the Office of Personnel Management.

(b)A workforce plan shall include a description of—

(1)

each critical need of the Administration and the criteria used in the identification of that need;

(2)

(A)the functions, approximate number, and classes or other categories of positions or employees that—

(i)

address critical needs; and

(ii)

would be eligible for each authority proposed to be exercised under this chapter; and

(B)

how the exercise of those authorities with respect to the eligible positions or employees involved would address each critical needidentified under paragraph (1);

(3)

(A)

any critical need identified under paragraph (1) which would not be addressed by the authorities made available under this chapter; and

(B)

the reasons why those needs would not be so addressed;

(4)

the specific criteria to be used in determining which individuals may receive the benefits described under sections 9804 and 9805 (including the criteria for granting bonuses in the absence of a critical need), and how the level of those benefits will be determined;

(5)

the safeguards or other measures that will be applied to ensure that this chapter is carried out in a manner consistent with merit system principles;

(6)

the means by which employees will be afforded the notification required under subsections (c) and (d)(1)(B);

(7)

the methods that will be used to determine if the authorities exercised under this chapter have successfully addressed each critical need identified under paragraph (1);

(8)

(A)

the recruitment methods used by the Administration before the enactment of this chapter to recruit highly qualified individuals; and

(B)the changes the Administration will implement after the enactment of this chapter in order to improve its recruitment of highly qualified individuals, including how it intends to use—

(i)

nongovernmental recruitment or placement agencies; and

(ii)

Internet technologies; and

(9)

any workforce-related reforms required to resolve the findings and recommendations of the Columbia Accident Investigation Board, the extent to which those recommendations were accepted, and, if necessary, the reasons why any of those recommendations were not accepted.

(c)

Not later than 60 days before first exercising any of the workforce authorities made available under this chapter, the Administrator shall provide to allemployees the workforce plan and any additional information which theAdministrator considers appropriate.

(d)

(1)

(A)

The Administrator may from time to time modify the workforce plan. Any modification to the workforce plan shall be submitted to the Office of Personnel Management for approval by the Office before the modification may be implemented.

(B)

Not later than 60 days before implementing any such modifications, the Administrator shall provide an appropriately modified plan to allemployees of the Administration and to the appropriate committees of Congress.

(2)

Any reference in this chapter or any other provision of law to the workforce plan shall be considered to include any modification made in accordance with this subsection.

(e)Before submitting any written plan under subsection (a) (or modification under subsection (d)) to the Office of Personnel Management, the Administrator shall—

(1)

provide to each employee representative representing any employeeswho might be affected by such plan (or modification) a copy of the proposed plan (or modification);

(2)

give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposed plan (or modification); and

(3)

give any recommendations received from any such representatives under paragraph (2) full and fair consideration in deciding whether or how to proceed with respect to the proposed plan (or modification).

(f)

None of the workforce authorities made available under this chapter may be exercised in a manner inconsistent with the workforce plan.

(g)

Whenever the Administration submits its performance plan under section 1115 of title 31 to the Office of Management and Budget for any year, theAdministration shall at the same time submit a copy of such plan to the appropriate committees of Congress.

(h)Not later than 6 years after the date of enactment of this chapter, the Administrator shall submit to the appropriate committees of Congress an evaluation and analysis of the actions taken by the Administration under this chapter, including—

(1)

an evaluation, using the methods described in subsection (b)(7), of whether the authorities exercised under this chapter successfully addressed each critical need identified under subsection (b)(1);

(2)

to the extent that they did not, an explanation of the reasons why any critical need (apart from the ones under subsection (b)(3)) was not successfully addressed; and

(3)

recommendations for how the Administration could address any remaining critical need and could prevent those that have been addressed from recurring.

(i)

The budget request for the Administration for the first fiscal year beginning after the date of enactment of this chapter and for each fiscal year thereafter shall include a statement of the total amount of appropriations requested for such fiscal year to carry out this chapter.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 462.)

5 - 4 - 9 - 4 - 3 Restrictions

(a)

None of the workforce authorities made available under this chapter may be exercised with respect to any officer who is appointed by the President, by and with the advice and consent of the Senate.

(b)

Unless specifically stated otherwise, all workforce authorities made available under this chapter shall be subject to section 5307.

(c)

(1)

None of the workforce authorities made available under section 9804, 9805, 9806, 9807, 9809, 9812, 9813, 9814, or 9815 may be exercised with respect to a political appointee.

(2)For purposes of this subsection, the term “political appointee” means anemployee who holds—

(A)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character; or

(B)

a position in the Senior Executive Service as a noncareer appointee (as such term is defined in section 3132(a)).

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 464.)

5 - 4 - 9 - 4 - 4 Recruitment, redesignation, and relocation bonuses

(a)Notwithstanding section 5753, the Administrator may pay a bonus to an individual, in accordance with the workforce plan and subject to the limitations in this section, if—

(1)

the Administrator determines that the Administration would be likely, in the absence of a bonus, to encounter difficulty in filling a position; and

(2)the individual—

(A)

is newly appointed as an employee of the Federal Government;

(B)

is currently employed by the Federal Government and is newly appointed to another position in the same geographic area; or

(C)

is currently employed by the Federal Government and is required to relocate to a different geographic area to accept a position with the Administration.

(b)If the position is described as addressing a critical need in the workforce planunder section 9802(b)(2)(A), the amount of a bonus may not exceed—

(1)

50 percent of the employee’s annual rate of basic pay (including comparability payments under sections 5304 and 5304a) as of the beginning of the service period multiplied by the service period specified under subsection (d)(1)(B)(i); or

(2)

100 percent of the employee’s annual rate of basic pay (including comparability payments under sections 5304 and 5304a) as of the beginning of the service period.

(c)

If the position is not described as addressing a critical need in the workforce plan under section 9802(b)(2)(A), the amount of a bonus may not exceed 25 percent of the employee’s annual rate of basic pay (excluding comparability payments under sections 5304 and 5304a) as of the beginning of the service period.

(d)

(1)

(A)

Payment of a bonus under this section shall be contingent upon the individual entering into a service agreement with the Administration.

(B)At a minimum, the service agreement shall include—

(i)

the required service period;

(ii)

the method of payment, including a payment schedule, which may include a lump-sum payment, installment payments, or a combination thereof;

(iii)

the amount of the bonus and the basis for calculating that amount; and

(iv)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(2)

For purposes of determinations under subsections (b)(1) and (c)(1), the employee’s service period shall be expressed as the number equal to the full years and twelfth parts thereof, rounding the fractional part of a month to the nearest twelfth part of a year. The service period may not be less than 6 months and may not exceed 4 years.

(3)

A bonus under this section may not be considered to be part of the basic pay of an employee.

(e)

Before paying a bonus under this section, the Administration shall establish a plan for paying recruitment, redesignation, and relocation bonuses, subject to approval by the Office of Personnel Management.

(f)

No more than 25 percent of the total amount in bonuses awarded under subsection (a) in any year may be awarded to supervisors or management officials.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 464.)

5 - 4 - 9 - 4 - 5 Retention bonuses

(a)Notwithstanding section 5754, the Administrator may pay a bonus to anemployee, in accordance with the workforce plan and subject to the limitations in this section, if the Administrator determines that—

(1)

the unusually high or unique qualifications of the employee or a special need of the Administration for the employee’s services makes it essential to retain the employee; and

(2)

the employee would be likely to leave in the absence of a retention bonus.

(b)

If the position is described as addressing a critical need in the workforce planunder section 9802(b)(2)(A), the amount of a bonus may not exceed 50 percent of the employee’s annual rate of basic pay (including comparability payments under sections 5304 and 5304a).

(c)

(d)

(1)

(A)

Payment of a bonus under this section shall be contingent upon the employee entering into a service agreement with the Administration.

(B)At a minimum, the service agreement shall include—

(i)

the required service period;

(ii)

the method of payment, including a payment schedule, which may include a lump-sum payment, installment payments, or a combination thereof;

(iii)

the amount of the bonus and the basis for calculating the amount; and

(iv)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(2)

The employee’s service period shall be expressed as the number equal to the full years and twelfth parts thereof, rounding the fractional part of a month to the nearest twelfth part of a year. The service period may not be less than 6 months and may not exceed 4 years.

(3)

Notwithstanding paragraph (1), a service agreement is not required if the Administration pays a bonus in biweekly installments and sets the installment payment at the full bonus percentage rate established for theemployee, with no portion of the bonus deferred. In this case, the Administration shall inform the employee in writing of any decision to change the retention bonus payments. The employee shall continue to accrue entitlement to the retention bonus through the end of the pay period in which such written notice is provided.

(e)

A bonus under this section may not be considered to be part of the basic pay of an employee.

(f)

An employee is not entitled to a retention bonus under this section during a service period previously established for that employee under section 5753 or under section 9804.

(g)

No more than 25 percent of the total amount in bonuses awarded under subsection (a) in any year may be awarded to supervisors or management officials.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 465.)

5 - 4 - 9 - 4 - 6 Term appointments

(a)

The Administrator may authorize term appointments within the Administration under subchapter I of chapter 33, for a period of not less than 1 year and not more than 6 years.

(b)Notwithstanding chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, the Administrator may convert an employee serving under a term appointment to a permanent appointment in the competitive service within the Administration without further competition if—

(1)

such individual was appointed under open, competitive examination under subchapter I of chapter 33 to the term position;

(2)

the announcement for the term appointment from which the conversion is made stated that there was potential for subsequent conversion to a career-conditional or career appointment;

(3)

the employee has completed at least 2 years of current continuous service under a term appointment in the competitive service;

(4)

the employee’s performance under such term appointment was at least fully successful or equivalent; and

(5)

the position to which such employee is being converted under this section is in the same occupational series, is in the same geographic location, and provides no greater promotion potential than the term position for which the competitive examination was conducted.

(c)

Notwithstanding chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, the Administrator may convert an employee serving under a term appointment to a permanent appointment in the competitive service within the Administration through internal competitive promotion procedures if the conditions under paragraphs (1) through (4) of subsection (b) are met.

(d)

An employee converted under this section becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure.

(e)

An employee converted to career or career-conditional employment under this section acquires competitive status upon conversion.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 466.)

5 - 4 - 9 - 4 - 7 Pay authority for critical positions

(a)In this section, the term “position” means—

(1)

a position to which chapter 51 applies, including a position in the Senior Executive Service;

(2)

a position under the Executive Schedule under sections 5312 through 5317;

(3)

a position established under section 3104; or

(4)

a senior-level position to which section 5376(a)(1) applies.

(b)Authority under this section—

(1)may be exercised only with respect to a position that—

(A)

is described as addressing a critical need in the workforce plan under section 9802(b)(2)(A); and

(B)

requires expertise of an extremely high level in a scientific, technical, professional, or administrative field;

(2)

may be exercised only to the extent necessary to recruit or retain an individual exceptionally well qualified for the position; and

(3)

may be exercised only in retaining employees of the Administration or in appointing individuals who were not employees of another Federal agency as defined under section 5102(a)(1).

(c)

(1)

Notwithstanding section 5377, the Administrator may fix the rate of basic pay for a position in the Administration in accordance with this section. TheAdministrator may not delegate this authority.

(2)

The number of positions with pay fixed under this section may not exceed 10 at any time.

(d)

(1)

The rate of basic pay fixed under this section may not be less than the rate of basic pay (including any comparability payments) which would otherwise be payable for the position involved if this section had never been enacted.

(2)

The annual rate of basic pay fixed under this section may not exceed the per annum rate of salary payable under section 104 of title 3.

(3)

Notwithstanding any provision of section 5307, in the case of an employee who, during any calendar year, is receiving pay at a rate fixed under this section, no allowance, differential, bonus, award, or similar cash payment may be paid to such employee if, or to the extent that, when added to basic pay paid or payable to such employee (for service performed in such calendar year as an employee in the executive branch or as an employeeoutside the executive branch to whom chapter 51 applies), such payment would cause the total to exceed the per annum rate of salary which, as of the end of such calendar year, is payable under section 104 of title 3.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 467.)

5 - 4 - 9 - 4 - 8 Assignments of intergovernmental personnel

For purposes of applying the third sentence of section 3372(a) (relating to the authority of the head of a Federal agency to extend the period of an employee’s assignment to or from a State or local government, institution of higher education, or other organization), the Administrator may, with the concurrence of the employee and the government or organization concerned, take any action which would be allowable if such sentence had been amended by striking “two” and inserting “four”.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 468.)

5 - 4 - 9 - 4 - 9 Science and technology scholarship program

(a)

(1)

The Administrator shall establish a National Aeronautics and Space Administration Science and Technology Scholarship Program to award scholarships to individuals that is designed to recruit and prepare students for careers in the Administration.

(2)

Individuals shall be selected to receive scholarships under this section through a competitive process primarily on the basis of academic merit, with consideration given to financial need and the goal of promoting the participation of individuals identified in section 33 or 34 of the Science and Engineering Equal Opportunities Act (42 U.S.C. 1885a or 1885b).

(3)

To carry out the Program the Administrator shall enter into contractual agreements with individuals selected under paragraph (2) under which the individuals agree to serve as full-time employees of the Administration, for the period described in subsection (f)(1), in positions needed by theAdministration and for which the individuals are qualified, in exchange for receiving a scholarship.

(b)In order to be eligible to participate in the Program, an individual must—

(1)

be enrolled or accepted for enrollment as a full-time student at an institution of higher education in an academic field or discipline described in the list made available under subsection (d);

(2)

be a United States citizen or permanent resident; and

(3)

at the time of the initial scholarship award, not be an employee (as defined in section 2105).

(c)

An individual seeking a scholarship under this section shall submit an application to the Administrator at such time, in such manner, and containing such information, agreements, or assurances as the Administrator may require to carry out this section.

(d)

The Administrator shall make publicly available a list of academic programsand fields of study for which scholarships under the Program may be utilized and shall update the list as necessary.

(e)

(1)

The Administrator may provide a scholarship under the Program for an academic year if the individual applying for the scholarship has submitted to the Administrator, as part of the application required under subsection (c), a proposed academic program leading to a degree in a program or field of study on the list made available under subsection (d).

(2)

An individual may not receive a scholarship under this section for more than 4 academic years, unless the Administrator grants a waiver.

(3)

The dollar amount of a scholarship under this section for an academic year shall be determined under regulations issued by the Administrator, but shall in no case exceed the cost of attendance.

(4)

A scholarship provided under this section may be expended for tuition, fees, and other authorized expenses as established by the Administrator by regulation.

(5)

The Administrator may enter into a contractual agreement with an institution of higher education under which the amounts provided for a scholarship under this section for tuition, fees, and other authorized expenses are paid directly to the institution with respect to which the scholarship is provided.

(f)

(1)

The period of service for which an individual shall be obligated to serve as an employee of the Administration is, except as provided in subsection (h)(2), 24 months for each academic year for which a scholarship under this section is provided.

(2)

(A)

Except as provided in subparagraph (B), obligated service under paragraph (1) shall begin not later than 60 days after the individual obtains the educational degree for which the scholarship was provided.

(B)

The Administrator may defer the obligation of an individual to provide a period of service under paragraph (1) if the Administratordetermines that such a deferral is appropriate. The Administrator shall prescribe the terms and conditions under which a service obligation may be deferred through regulation.

(g)

(1)

Scholarship recipients who fail to maintain a high level of academic standing, as defined by the Administrator by regulation, who are dismissed from their educational institutions for disciplinary reasons, or who voluntarily terminate academic training before graduation from the educational program for which the scholarship was awarded, shall be in breach of their contractual agreement and, in lieu of any service obligation arising under such agreement, shall be liable to the United States for repayment within 1 year after the date of default of all scholarship funds paid to them and to the institution of higher education on their behalf under the agreement, except as provided in subsection (h)(2). The repayment period may be extended by the Administrator when determined to be necessary, as established by regulation.

(2)Scholarship recipients who, for any reason, fail to begin or complete their service obligation after completion of academic training, or fail to comply with the terms and conditions of deferment established by the Administratorpursuant to subsection (f)(2)(B), shall be in breach of their contractual agreement. When recipients breach their agreements for the reasons stated in the preceding sentence, the recipient shall be liable to the United States for an amount equal to—

(A)

the total amount of scholarships received by such individual under this section; plus

(B)

the interest on the amounts of such awards which would be payable if at the time the awards were received they were loans bearing interest at the maximum legal prevailing rate, as determined by the Treasurer of the United States.

(h)

(1)

Any obligation of an individual incurred under the Program (or a contractual agreement thereunder) for service or payment shall be canceled upon the death of the individual.

(2)

The Administrator shall by regulation provide for the partial or total waiver or suspension of any obligation of service or payment incurred by an individual under the Program (or a contractual agreement thereunder) whenever compliance by the individual is impossible or would involve extreme hardship to the individual, or if enforcement of such obligation with respect to the individual would be contrary to the best interests of the Government.

(i)For purposes of this section—

(1)

the term “cost of attendance” has the meaning given that term in section 472 of the Higher Education Act of 1965;

(2)

the term “institution of higher education” has the meaning given that term in section 101(a) of the Higher Education Act of 1965; and

(3)

the term “Program” means the National Aeronautics and Space Administration Science and Technology Scholarship Program established under this section.

(j)

(1)

There is authorized to be appropriated to the Administration for the Program $10,000,000 for each fiscal year.

(2)

Amounts appropriated under this section shall remain available for 2 fiscal years.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 468; amended Pub. L. 109–155, title VII, § 703(a), Dec. 30, 2005, 119 Stat. 2936.)

5 - 4 - 9 - 4 - 10 Distinguished scholar appointment authority

(a)In this section—

(1)the term “professional position” means a position that is classified to an occupational series identified by the Office of Personnel Management as a position that—

(A)

requires education and training in the principles, concepts, and theories of the occupation that typically can be gained only through completion of a specified curriculum at a recognized college or university; and

(B)

is covered by the Group Coverage Qualification Standard for Professional and Scientific Positions; and

(2)

the term “research position” means a position in a professional series that primarily involves scientific inquiry or investigation, or research-type exploratory development of a creative or scientific nature, where the knowledge required to perform the work successfully is acquired typically and primarily through graduate study.

(b)The Administration may appoint, without regard to the provisions of section 3304(b) and sections 3309 through 3318, but subject to subsection (c), candidates directly to General Schedule professional, competitive service positions in the Administration for which public notice has been given (in accordance with regulations of the Office of Personnel Management), if—

(1)with respect to a position at the GS–7 level, the individual—

(A)

received, within 2 years before the effective date of the appointment, from an accredited institution authorized to grant baccalaureate degrees, a baccalaureate degree in a field of study for which possession of that degree in conjunction with academic achievements meets the qualification standards as prescribed by the Office of Personnel Management for the position to which the individual is being appointed; and

(B)

achieved a cumulative grade point average of 3.0 or higher on a 4.0 scale and a grade point average of 3.5 or higher for courses in the field of study required to qualify for the position;

(2)with respect to a position at the GS–9 level, the individual—

(A)

received, within 2 years before the effective date of the appointment, from an accredited institution authorized to grant graduate degrees, a graduate degree in a field of study for which possession of that degree meets the qualification standards at this grade level as prescribed by the Office of Personnel Management for the position to which the individual is being appointed; and

(B)

achieved a cumulative grade point average of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position;

(3)with respect to a position at the GS–11 level, the individual—

(A)

(B)

achieved a cumulative grade point average of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position; or

(4)with respect to a research position at the GS–12 level, the individual—

(A)

(B)

achieved a cumulative grade point average of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position.

(c)

In making any selections under this section, preference eligibles who meet the criteria for distinguished scholar appointments shall be considered ahead of nonpreference eligibles.

(d)

An appointment made under this authority shall be a career-conditional appointment in the competitive civil service.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 470.)

5 - 4 - 9 - 4 - 11 Travel and transportation expenses of certain new appointees

(a)In this section, the term “new appointee” means—

(1)a person newly appointed or reinstated to Federal service to the Administration to—

(A)

a career or career-conditional appointment or an excepted service appointment to a continuing position;

(B)

a term appointment;

(C)

an excepted service appointment that provides for noncompetitive conversion to a career or career-conditional appointment;

(D)

a career or limited term Senior Executive Service appointment;

(E)

an appointment made under section 20113(b)(1) of title 51;

(F)

an appointment to a position established under section 3104; or

(G)

an appointment to a position established under section 5108; or

(2)

a student trainee who, upon completion of academic work, is converted to an appointment in the Administration that is identified in paragraph (1) in accordance with an appropriate authority.

(b)

The Administrator may pay the travel, transportation, and relocation expenses of a new appointee to the same extent, in the same manner, and subject to the same conditions as the payment of such expenses under sections 5724, 5724a, 5724b, and 5724c to an employee transferred in the interests of the United States Government.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 472; amended Pub. L. 111–314, § 4(a), Dec. 18, 2010, 124 Stat. 3440.)

5 - 4 - 9 - 4 - 12 Annual leave enhancements

(a)In this section—

(1)the term “newly appointed employee” means an individual who is first appointed—

(A)

as an employee of the Federal Government; or

(B)as an employee of the Federal Government following a break in service of at least 90 days after that individual’s last period of Federal employment, other than—

(i)

employment under the Student Educational Employment Program administered by the Office of Personnel Management;

(ii)

employment as a law clerk trainee;

(iii)

employment under a short-term temporary appointing authority while a student during periods of vacation from the educational institution at which the student is enrolled;

(iv)

employment under a provisional appointment if the new appointment is permanent and immediately follows the provisional appointment; or

(v)

employment under a temporary appointment that is neither full-time nor the principal employment of the individual;

(2)the term “period of qualified non-Federal service” means any period of service performed by an individual that—

(A)

was performed in a position the duties of which were directly related to the duties of the position in the Administration which that individual will fill as a newly appointed employee; and

(B)

except for this section, would not otherwise be service performed by an employee for purposes of section 6303; and

(3)

the term “directly related to the duties of the position” means duties and responsibilities in the same line of work which require similar qualifications.

(b)

(1)

For purposes of section 6303, the Administrator may deem a period of qualified non-Federal service performed by a newly appointed employee to be a period of service of equal length performed as an employee.

(2)

A decision under paragraph (1) to treat a period of qualified non-Federal service as if it were service performed as an employee shall continue to apply so long as that individual serves in or under the Administration.

(c)

(1)

Notwithstanding section 6303(a), the annual leave accrual rate for an employee of the Administration in a position paid under section 5376 or 5383, or for an employee in an equivalent category whose rate of basic pay is greater than the rate payable at GS–15, step 10, shall be 1 day for each full biweekly pay period.

(2)

The accrual rate established under this subsection shall continue to apply to the employee so long as such employee serves in or under the Administration.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 472.)

5 - 4 - 9 - 4 - 13 Limited appointments to Senior Executive Service positions

(a)In this section—

(1)the term “career reserved position” means a position in theAdministration designated under section 3132(b) which may be filled only by—

(A)

a career appointee; or

(B)a limited emergency appointee or a limited term appointee—

(i)

who, immediately before entering the career reserved position, was serving under a career or career-conditional appointment outside the Senior Executive Service; or

(ii)

whose limited emergency or limited term appointment is approved in advance by the Office of Personnel Management;

(2)

the term “limited emergency appointee” has the meaning given under section 3132; and

(3)

the term “limited term appointee” means an individual appointed to a Senior Executive Service position in the Administration to meet a bona fide temporary need, as determined by the Administrator.

(b)

The number of career reserved positions which are filled by an appointee as described under subsection (a)(1)(B) may not exceed 10 percent of the total number of Senior Executive Service positions allocated to the Administration.

(c)Notwithstanding sections 3132 and 3394(b)—

(1)the Administrator may appoint an individual to any Senior Executive Service position in the Administration as a limited term appointee under this section for a period of—

(A)

4 years or less to a position the duties of which will expire at the end of such term; or

(B)

1 year or less to a position the duties of which are continuing; and

(2)in rare circumstances, the Administrator may authorize an extension of a limited appointment under—

(A)

paragraph (1)(A) for a period not to exceed 2 years; and

(B)

paragraph (1)(B) for a period not to exceed 1 year.

(d)

A limited term appointee who has been appointed in the Administration from a career or career-conditional appointment outside the Senior Executive Service shall have reemployment rights in the agency from which appointed, or in another agency, under requirements and conditions established by the Office of Personnel Management. The Office shall have the authority to direct such placement in any agency.

(e)Notwithstanding section 3394(b) and section 3395—

(1)

a limited term appointee serving under a term prescribed under this section may be reassigned to another Senior Executive Service position in theAdministration, the duties of which will expire at the end of a term of 4 years or less; and

(2)

a limited term appointee serving under a term prescribed under this section may be reassigned to another continuing Senior Executive Service position in the Administration, except that the appointee may not serve in 1 or more positions in the Administration under such appointment in excess of 1 year, except that in rare circumstances, the Administrator may approve an extension up to an additional 1 year.

(f)

A limited term appointee may not serve more than 7 consecutive years under any combination of limited appointments.

(g)

Notwithstanding section 5384, the Administrator may authorize performance awards to limited term appointees in the Administration in the same amounts and in the same manner as career appointees.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 473.)

5 - 4 - 9 - 4 - 14 Qualifications pay

(a)Notwithstanding section 5334, the Administrator may set the pay of anemployee paid under the General Schedule at any step within the pay range for the grade of the position, if such employee—

(1)

possesses unusually high or unique qualifications; and

(2)is assigned—

(A)

new duties, without a change of position; or

(B)

to a new position.

(b)

If an exercise of the authority under this section relates to a current employee selected for another position within the Administration, a determination shall be made that the employee’s contribution in the new position will exceed that in the former position, before setting pay under this section.

(c)

Pay as set under this section is basic pay for such purposes as pay set under section 5334.

(d)

If the employee serves for at least 1 year in the position for which the pay determination under this section was made, or a successor position, the pay earned under such position may be used in succeeding actions to set pay under chapter 53.

(e)Before setting any employee’s pay under this section, the Administrator shall submit a plan to the Office of Personnel Management and the appropriate committees of Congress, that includes—

(1)

criteria for approval of actions to set pay under this section;

(2)

the level of approval required to set pay under this section;

(3)

all types of actions and positions to be covered;

(4)

the relationship between the exercise of authority under this section and the use of other pay incentives; and

(5)

a process to evaluate the effectiveness of this section.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 474.)

5 - 4 - 9 - 4 - 15 Reporting requirement

The Administrator shall submit to the appropriate committees of Congress, not later than February 28 of each of the next 6 years beginning after the date of enactment of this chapter, a report that provides the following:

(1)

A summary of all bonuses paid under subsections (b) and (c) of section 9804 during the preceding fiscal year. Such summary shall include the total amount of bonuses paid, the total number of bonuses paid, the percentage of the amount of bonuses awarded to supervisors and management officials, and the average percentage used to calculate the total average bonus amount, under each of those subsections.

(2)

A summary of all bonuses paid under subsections (b) and (c) of section 9805 during the preceding fiscal year. Such summary shall include the total amount of bonuses paid, the total number of bonuses paid, the percentage of the amount of bonuses awarded to supervisors and management officials, and the average percentage used to calculate the total average bonus amount, under each of those subsections.

(3)

The total number of term appointments converted during the preceding fiscal year under section 9806 and, of that total number, the number of conversions that were made to address a critical need described in the workforce planpursuant to section 9802(b)(2).

(4)

The number of positions for which the rate of basic pay was fixed under section 9807 during the preceding fiscal year, the number of positions for which the rate of basic pay under such section was terminated during the preceding fiscal year, and the number of times the rate of basic pay was fixed under such section to address a critical need described in the workforce plan pursuant to section 9802(b)(2).

(5)

The number of scholarships awarded under section 9809 during the preceding fiscal year and the number of scholarship recipients appointed by theAdministration during the preceding fiscal year.

(6)

The total number of distinguished scholar appointments made under section 9810 during the preceding fiscal year and, of that total number, the number of appointments that were made to address a critical need described in theworkforce plan pursuant to section 9802(b)(2).

(7)

The average amount paid per appointee, and the largest amount paid to any appointee, under section 9811 during the preceding fiscal year for travel and transportation expenses.

(8)

The total number of employees who were awarded enhanced annual leave under section 9812 during the preceding fiscal year; of that total number, the number of employees who were serving in a position addressing a critical need described in the workforce plan pursuant to section 9802(b)(2); and, foremployees in each of those respective groups, the average amount of additional annual leave such employees earned in the preceding fiscal year (over and above what they would have earned absent section 9812).

(9)

The total number of appointments made under section 9813 during the preceding fiscal year and, of that total number, the number of appointments that were made to address a critical need described in the workforce plan pursuant to section 9802(b)(2).

(10)

The number of employees for whom the Administrator set the pay under section 9814 during the preceding fiscal year and the number of times pay was set under such section to address a critical need described in the workforce plan pursuant to section 9802(b)(2).

(11)

A summary of all recruitment, relocation, redesignation, and retention bonuses paid under authorities other than this chapter and excluding the authorities provided in sections 5753 and 5754 of this title, during the preceding fiscal year. Such summary shall include, for each type of bonus, the total amount of bonuses paid, the total number of bonuses paid, the percentage of the amount of bonuses awarded to supervisors and management officials, and the average percentage used to calculate the total average bonus amount.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 475.)

5 - 4 - 9 - 5 DEPARTMENT OF DEFENSE PERSONNEL AUTHORITIES (§§ 9901 to 9904)

5 - 4 - 9 - 5 - 1 Definitions

For purposes of this chapter—

(1)

the term “Director” means the Director of the Office of Personnel Management; and

(2)

the term “Secretary” means the Secretary of Defense.

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1621.)

5 - 4 - 9 - 5 - 2 Department of Defense personnel authorities

(a)Performance Management and Workforce Incentives.—

(1)The Secretary, in coordination with the Director, shall promulgate regulations providing for the following:

(A)

A fair, credible, and transparent performance appraisal system for employees.

(B)

A fair, credible, and transparent system for linking employee bonuses and other performance-based actions to performance appraisals of employees.

(C)

A process for ensuring ongoing performance feedback and dialogue among supervisors, managers, and employees throughout the appraisal period and setting timetables for review.

(D)

Development of attractive career paths.

(E)

Development of “performance assistance plans” that are designed to give employees formal training, on-the-job training, counseling, mentoring, and other assistance.

(2)

In developing the regulations required by this subsection, the Secretary, in coordination with the Director, may waive the requirements of chapter 43(other than sections 4302 and 4303(e)) and the regulations implementing such chapter, to the extent necessary to achieve the objectives of this subsection.

(3)

(A)

The Secretary may establish a fund, to be known as the “Department of Defense Civilian Workforce Incentive Fund” (in this paragraph referred to as the “Fund”).

(B)The Fund shall consist of the following:

(i)

Amounts appropriated to the Fund.

(ii)

Amounts available for compensation of employees that are transferred to the Fund.

(C)Amounts in the Fund shall be available for the following:

(i)

Incentive payments for employees based on team or individual performance (which payments shall be in addition to basic pay).

(ii)

Incentive payments to attract or retain employees with particular or superior qualifications or abilities.

(D)

The authority provided in this paragraph is in addition to, and does not supersede or replace, any authority or source of funding otherwise available to the Secretary to pay bonuses or make incentive payments to civilian employees of the Department.

(4)

(A)

Any action taken by the Secretary under this subsection, or to implement this subsection, shall be subject to the requirements of subsection (c) and chapter 71.

(B)

Any rules or regulations promulgated pursuant to this subsection shall be deemed an agency rule or regulation under section 7117(a)(2), and shall not be deemed a Government-wide rule or regulation under section 7117(a)(1).

(b)Flexibilities Relating to Appointments.—

(1)The Secretary, in coordination with the Director, shall promulgate regulations to redesign the procedures which are applied by the Department of Defense in making appointments to positions within the competitive service in order to—

(A)

better meet mission needs;

(B)

respond to managers’ needs and the needs of applicants;

(C)

produce high-quality applicants;

(D)

support timely decisions;

(E)

uphold appointments based on merit system principles; and

(F)

promote competitive job offers.

(2)In redesigning the process by which such appointments shall be made, the Secretary, in coordination with the Director, may waive the requirements of chapter 33, and the regulations implementing such chapter, to the extent necessary to achieve the objectives of this section, while providing for the following:

(A)

Fair, credible, and transparent methods of establishing qualification requirements for, recruitment for, and appointments to positions.

(B)

Fair and open competition and equitable treatment in the consideration and selection of individuals to positions.

(C)

Fair, credible, and transparent methods of assigning, reassigning, detailing, transferring, or promoting employees.

(3)

In implementing this subsection, the Secretary shall comply with the provisions of section 2302(b)(11), regarding veterans’ preference requirements, in a manner consistent with that in which such provisions are applied under chapter 33.

(4)

(A)

Any action taken by the Secretary under this subsection, or to implement this subsection, shall be subject to the requirements of subsection (c) and chapter 71.

(B)

Any rules or regulations promulgated pursuant to this section shall be deemed an agency rule or regulation under section 7117(a)(2), and shall not be deemed a Government-wide rule or regulation under section 7117(a)(1).

(5)

The Secretary shall develop a training program for Department of Defense human resource professionals to implement the requirements of this subsection.

(6)

The Secretary shall develop indicators of effectiveness to determine whether appointment flexibilities under this subsection have achieved the objectives set forth in paragraph (1).

(c)Criteria for Use of New Personnel Authorities.—In establishing any new performance management and workforce incentive system under subsection (a) or utilizing appointment flexibilities under subsection (b), the Secretary shall—

(1)

adhere to merit principles set forth in section 2301;

(2)

include a means for ensuring employee involvement (for bargaining unit employees, through their exclusive representatives) in the design and implementation of such system;

(3)

provide for adequate training and retraining for supervisors, managers, and employees in the implementation and operation of such system;

(4)develop—

(A)

a comprehensive management succession program to provide training to employees to develop managers for the agency; and

(B)

a program to provide training to supervisors on actions, options, and strategies a supervisor may use in administering such system;

(5)

include effective transparency and accountability measures and safeguards to ensure that the management of such system is fair, credible, and equitable, including appropriate independent reasonableness reviews, internal assessments, and employee surveys;

(6)

provide mentors to advise individuals on their career paths and opportunities to advance and excel within their fields;

(7)

develop appropriate procedures for warnings during performance evaluations for employees who fail to meet performance standards;

(8)

utilize the annual strategic workforce plan, required by section 115b [1] of title 10; and

(9)

ensure that adequate agency resources are allocated for the design, implementation, and administration of such system.

(d)Development of Training Program for Supervisors.—

(1)The Secretary shall develop—

(A)a program to provide training to supervisors on use of the new authorities provided in this section, including the actions, options, and strategies a supervisor may use in—

(i)

developing and discussing relevant goals and objectives with the employee, communicating and discussing progress relative to performance goals and objectives, and conducting performance appraisals;

(ii)

mentoring and motivating employees, and improving employeeperformance and productivity;

(iii)

fostering a work environment characterized by fairness, respect, equal opportunity, and attention to the quality of the work of employees;

(iv)

effectively managing employees with unacceptable performance;

(v)

addressing reports of a hostile work environment, reprisal, or harassment of or by another supervisor or employee; and

(vi)

otherwise carrying out the duties and responsibilities of a supervisor;

(B)

a program to provide training to supervisors on the prohibited personnel practices under section 2302 (particularly with respect to such practices described under subsections (b)(1) and (b)(8) of such section),employee collective bargaining and union participation rights, and the procedures and processes used to enforce employee rights; and

(C)a program under which experienced supervisors mentor new supervisors by—

(i)

sharing knowledge and advice in areas such as communication, critical thinking, responsibility, flexibility, motivating employees, teamwork, leadership, and professional development; and

(ii)

pointing out strengths and areas for development.

(2)

Each supervisor shall be required to complete a program at least once every 3 years.

(e)Provisions Regarding National Level Bargaining.—

(1)

The Secretary may bargain with a labor organization which has been accorded exclusive recognition under chapter 71 at an organizational level above the level of exclusive recognition. The decision to bargain above the level of exclusive recognition shall not be subject to review. The Secretary shall consult with the labor organization before determining the appropriate organizational level of bargaining.

(2)Any such bargaining shall—

(A)address issues that are—

(i)

subject to bargaining under chapter 71 and this chapter;

(ii)

applicable to multiple bargaining units; and

(iii)

raised by either party to the bargaining;

(B)

except as agreed by the parties or directed through an independent dispute resolution process agreed upon by the parties, be binding on all affected subordinate bargaining units of the labor organization at the level of recognition and their exclusive representatives, and the Department of Defense and its subcomponents, without regard to levels of recognition;

(C)

to the extent agreed by the parties or directed through an independent dispute resolution process agreed upon by the parties, supersede conflicting provisions of all other collective bargaining agreements of the labor organization, including collective bargaining agreements negotiated with an exclusive representative at the level of recognition; and

(D)

except as agreed by the parties or directed through an independent dispute resolution process agreed upon by the parties, not be subject to further negotiations for any purpose, including bargaining at the level of recognition.

(3)

Any independent dispute resolution process agreed to by the parties for the purposes of paragraph (2) shall have the authority to address all issues on which the parties are unable to reach agreement.

(4)

The National Guard Bureau and the Army and Air Force National Guard may be included in coverage under this subsection.

(5)

Any bargaining completed pursuant to this subsection with a labor organization not otherwise having national consultation rights with the Department of Defense or its subcomponents shall not create any obligation on the Department of Defense or its subcomponents to confer national consultation rights on such a labor organization.

(f)Provisions Related to Separation and Retirement Incentives.—

(1)

The Secretary may establish a program within the Department of Defenseunder which employees may be eligible for early retirement, offered separation incentive pay to separate from service voluntarily, or both. This authority may be used to reduce the number of personnel employed by the Department of Defense or to restructure the workforce to meet mission objectives without reducing the overall number of personnel. This authority is in addition to, and notwithstanding, any other authorities established by law or regulation for such programs.

(2)

(A)

The Secretary may not authorize the payment of voluntary separation incentive pay under paragraph (1) to more than 25,000 employees in any fiscal year, except that employees who receive voluntary separation incentive pay as a result of a closure or realignment of a military installation under the Defense Base Closure and Realignment Act of 1990(title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) shall not be included in that number.

(B)

The Secretary shall prepare a report each fiscal year setting forth the number of employees who received such pay as a result of a closure or realignment of a military base as described under subparagraph (A).

(C)

The Secretary shall submit the report under subparagraph (B) to the Committee on Armed Services and the Committee on Governmental Affairs of the Senate, and the Committee on Armed Services and the Committee on Government Reform of the House of Representatives.

(3)For purposes of this section, the term “employee” means an employee of the Department of Defense, serving under an appointment without time limitation, except that such term does not include—

(A)

a reemployed annuitant under subchapter III of chapter 83 or chapter 84, or another retirement system for employees of the Federal Government;

(B)

an employee having a disability on the basis of which such employeeis or would be eligible for disability retirement under any of the retirement systems referred to in subparagraph (A); or

(C)

for purposes of eligibility for separation incentives under this section, an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance.

(4)

An employee who is at least 50 years of age and has completed 20 years of service, or has at least 25 years of service, may, pursuant to regulations promulgated under this section, apply and be retired from the Department of Defense and receive benefits in accordance with chapter 83 or 84 if theemployee has been employed continuously within the Department of Defense for more than 30 days before the date on which the determination to conduct a reduction or restructuring within 1 or more Department of Defense components is approved.

(5)

(A)Separation pay shall be paid in a lump sum or in installments and shall be equal to the lesser of—

(i)

an amount equal to the amount the employee would be entitled to receive under section 5595(c), if the employee were entitled to payment under such section; or

(ii)

$25,000.

(B)

Separation pay shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit. Separation pay shall not be taken into account for the purpose of determining the amount of any severance pay to which an individual may be entitled under section 5595, based on any other separation.

(C)

Separation pay, if paid in installments, shall cease to be paid upon the recipient’s acceptance of employment by the Federal Government, or commencement of work under a personal services contract as described in paragraph (6).

(6)

(A)

An employee who receives separation pay under such program may not be reemployed by the Department of Defense for a 12-month period beginning on the effective date of the employee’s separation, unless this prohibition is waived by the Secretary on a case-by-case basis.

(B)

An employee who receives separation pay under this section on the basis of a separation occurring on or after the date of the enactment of the Federal Workforce Restructuring Act of 1994 (Public Law 103–226; 108 Stat. 111) and accepts employment with the Government of the United States, or who commences work through a personal services contract with the United States within 5 years after the date of the separation on which payment of the separation pay is based, shall be required to repay the entire amount of the separation pay to the Department of Defense. If the employment is with an Executive agency (as defined by section 105) other than the Department of Defense, the Director may, at the request of the head of that agency, waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. If the employment is within the Department of Defense, theSecretary may waive the repayment if the individual involved is the only qualified applicant available for the position. If the employment is with an entity in the legislative branch, the head of the entity or the appointing official may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. If the employment is with the judicial branch, the Director of the Administrative Office of the United States Courts may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

(7)

Under this program, early retirement and separation pay may be offered only pursuant to regulations established by the Secretary, subject to such limitations or conditions as the Secretary may require.

(g)Provisions Relating to Reemployment.—

(1)

Except as provided under paragraph (2), if an annuitant receiving an annuity from the Civil Service Retirement and Disability Fund becomes employed in a position within the Department of Defense, his annuity shall continue. An annuitant so reemployed shall not be considered an employee for purposes of subchapter III of chapter 83 or chapter 84.

(2)

(A)

An annuitant retired under section 8336(d)(1) or 8414(b)(1)(A) receiving an annuity from the Civil Service Retirement and Disability Fund, who becomes employed in a position within the Department of Defenseafter the date of enactment of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136), may elect to be subject to section 8344 or 8468 (as the case may be).

(B)An election for coverage under this paragraph shall be filed not later than the later of 90 days after the date the Department of Defense—

(i)

prescribes regulations to carry out this subsection; or

(ii)

takes reasonable actions to notify employees who may file an election.

(C)

If an employee files an election under this paragraph, coverage shall be effective beginning on the first day of the first applicable pay period beginning on or after the date of the filing of the election.

(D)

Paragraph (1) shall apply to an individual who is eligible to file an election under subparagraph (A) and does not file a timely election under subparagraph (B).

(3)

Benefits similar to those provided by paragraphs (1) and (2) may be extended, in accordance with regulations prescribed by the President, so as to be made available with respect to reemployed annuitants within the Department of Defense who are subject to such other retirement systems for Government employees (whose annuities are payable under authorities other than subchapter III of chapter 83 or chapter 84 of title 5) as may be provided for under such regulations.

(4)

The Secretary shall prescribe regulations to carry out this subsection, excluding paragraph (3).

(h)Reports.—

(1)In general.—Not later than 1 year after the implementation of any performance management and workforce incentive system under subsection (a) or any procedures relating to personnel appointment flexibilities under subsection (b) (whichever is earlier), and whenever any significant action is taken under any of the preceding provisions of this section (but at least biennially) thereafter, the Secretary shall—

(A)

conduct appropriately designed and statistically valid internal assessments or employee surveys to assess employee perceptions of any program, system, procedures, or other aspect of personnel management, as established or modified under authority of this section; and

(B)

submit to the appropriate committees of Congress and the Comptroller General, a report describing the results of the assessments or surveys conducted under subparagraph (A) (including the methodology used), together with any other information which theSecretary considers appropriate.

(2)Review.—After receiving any report under paragraph (1), the Comptroller General—

(A)

shall review the assessments or surveys described in such report to determine if they were appropriately designed and statistically valid;

(B)

shall conduct a review of the extent to which the program, system, procedures, or other aspect of program management concerned (as described in paragraph (1)(A)) is fair, credible, transparent, and otherwise in conformance with the requirements of this section; and

(C)within 6 months after receiving such report, shall submit to the appropriate committees of Congress—

(i)

an independent evaluation of the results of the assessments or surveys reviewed under subparagraph (A), and

(ii)

the findings of the Comptroller General based on the review under subparagraph (B),

together with any recommendations the Comptroller General considers appropriate.

(3)Definition.—For purposes of this subsection, the term “appropriate committees of Congress” means—

(A)

the Committees on Armed Services of the Senate and the House of Representatives;

(B)

the Committee on Homeland Security and Governmental Affairs of the Senate; and

(C)

the Committee on Oversight and Government Reform of the House of Representatives.

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1621; amended Pub. L. 110–181, div. A, title XI, § 1106(a), Jan. 28, 2008, 122 Stat. 349; Pub. L. 110–417, [div. A], title XI, § 1106, Oct. 14, 2008, 122 Stat. 4617; Pub. L. 111–84, div. A, title XI, §§ 1113(b)(1), (d), (f)(1), 1121, Oct. 28, 2009, 123 Stat. 2498, 2499, 2502, 2505; Pub. L. 111–383, div. A, title X, § 1075(a)(2), title XI, § 1101(c), Jan. 7, 2011, 124 Stat. 4368, 4382; Pub. L. 112–81, div. A, title XI, §§ 1101(a)–(c), 1102(a), Dec. 31, 2011, 125 Stat. 1610, 1611.)

5 - 4 - 9 - 5 - 3 Attracting highly qualified experts

(a)In General.—

The Secretary may carry out a program using the authority provided in subsection (b) in order to attract highly qualified experts in needed occupations, as determined by the Secretary.

(b)Authority.—Under the program, the Secretary may—

(1)

appoint personnel from outside the civil service and uniformed services (as such terms are defined in section 2101) to positions in the Department of Defense without regard to any provision of this title governing the appointment of employees to positions in the Department of Defense;

(2)

prescribe the rates of basic pay for positions to which employees are appointed under paragraph (1) at rates not in excess of the maximum rate of basic pay authorized for senior-level positions under section 5376, as increased by locality-based comparability payments under section 5304, notwithstanding any provision of this title governing the rates of pay or classification of employees in the executive branch; and

(3)

pay any employee appointed under paragraph (1) payments in addition to basic pay within the limits applicable to the employee under subsection (d).

(c)Limitation on Term of Appointment.—

(1)

Except as provided in paragraph (2), the service of an employee under an appointment made pursuant to this section may not exceed 5 years.

(2)

The Secretary may, in the case of a particular employee, extend the period to which service is limited under paragraph (1) by up to 1 additional year if the Secretary determines that such action is necessary to promote the Department of Defense’s national security missions.

(d)Limitations on Additional Payments.—

(1)The total amount of the additional payments paid to an employee under this section for any 12-month period may not exceed the lesser of the following amounts:

(A)

$50,000 in fiscal year 2004, which may be adjusted annually thereafter by the Secretary, with a percentage increase equal to one-half of 1 percentage point less than the percentage by which the Employment Cost Index, published quarterly by the Bureau of Labor Statistics, for thebase quarter of the year before the preceding calendar year exceeds the Employment Cost Index for the base quarter of the second year before the preceding calendar year.

(B)

The amount equal to 50 percent of the employee’s annual rate of basic pay.

For purposes of this paragraph, the term “base quarter” has the meaning given such term by section 5302(3).

(2)An employee appointed under this section is not eligible for any bonus, monetary award, or other monetary incentive for service, except for—

(A)

payments authorized under this section; and

(B)

in the case of an employee who is assigned in support of a contingency operation (as defined in section 101(a)(13) of title 10), allowances and any other payments authorized under chapter 59.

(3)

Notwithstanding any other provision of this subsection or of section 5307, no additional payments may be paid to an employee under this section in any calendar year if, or to the extent that, the employee’s total annual compensation will exceed the maximum amount of total annual compensation payable at the salary set in accordance with section 104 of title 3. In computing an employee’s total annual compensation for purposes of the preceding sentence, any payment referred to in paragraph (2)(B) shall be excluded.

(e)Limitation on Number of Highly Qualified Experts.—

The number of highly qualified experts appointed and retained by the Secretaryunder subsection (b)(1) shall not exceed 2,500 at any time.

(f)Savings Provisions.—In the event that the Secretary terminates this program, in the case of an employee who, on the day before the termination of the program, is serving in a position pursuant to an appointment under this section—

(1)the termination of the program does not terminate the employee’s employment in that position before the expiration of the lesser of—

(A)

the period for which the employee was appointed; or

(B)

the period to which the employee’s service is limited under subsection (c), including any extension made under this section before the termination of the program; and

(2)

the rate of basic pay prescribed for the position under this section may not be reduced as long as the employee continues to serve in the position without a break in service.

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1632; amended Pub. L. 112–81, div. A, title XI, § 1105, Dec. 31, 2011, 125 Stat. 1612.)

5 - 4 - 9 - 5 - 4 Special pay and benefits for certain employees outside the United States

The Secretary may provide to certain civilian employees of the Department of Defense assigned to activities outside the United States as determined by theSecretary to be in support of Department of Defense activities abroad hazardous to life or health or so specialized because of security requirements as to be clearly distinguishable from normal Government employment—

(1)allowances and benefits—

(A)

comparable to those provided by the Secretary of State to members of the Foreign Service under chapter 9 of title I of the Foreign Service Act of 1980 (Public Law 96–465, 22 U.S.C. 4081 et seq.) or any other provision of law; or

(B)

comparable to those provided by the Director of Central Intelligence to personnel of the Central Intelligence Agency; and

(2)

special retirement accrual benefits and disability in the same manner provided for by the Central Intelligence Agency Retirement Act (50 U.S.C. 2001 et seq.) and in section 18 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403r).[1]

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1633.)

Direct hire authority for certain personnel of the Department of Defense

(a)In General.—The Secretary of Defense may appoint, without regard to the provisions of subchapter I of chapter 33 (other than sections 3303 and 3328 of such chapter), qualified candidates to any of the following positions in the competitive service in the Department of Defense:

(1)

Any position involved with Department maintenance activities, including depot-level maintenance and repair.

(2)

Any cyber workforce position.

(3)

Any individual in the acquisition workforce that manages any services contracts necessary to the operation and maintenance of programs of the Department.

(4)

Any science, technology, or engineering position, including any such position at the Major Range and Test Facilities Base, in order to allow development of new systems and provide for the maintenance of legacy systems.

(5)

Any scientific, technical, engineering, or mathematics positions, including technicians, within the defense acquisition workforce, or any category of acquisition positions within the Department designated by the Secretary as a shortage or critical need category.

(6)

Any scientific, technical, engineering, or mathematics position, except any such position within any defense Scientific and Technology Reinvention Laboratory, for which a qualified candidate is required to possess a bachelor’s degree or an advanced degree, or for which a veteran candidate is being considered.

(7)

Any category of medical or health professional positions within the Department designated by the Secretary as a shortage category or critical need occupation.

(8)

Any childcare services position for which there is a critical hiring need and a shortage of childcare providers.

(9)

Any financial management, accounting, auditing, actuarial, cost estimation, operational research, or business or business administration position for which a qualified candidate is required to possess a finance, accounting, management or actuarial science degree or a related degree, or a related degree of equivalent experience.

(10)

Any position, as determined by the Secretary, for the purpose of assisting and facilitating the efforts of the Department in business transformation and management innovation.

(11)

Any position in the military housing office of a military installation whose primary function is supervision of military housing covered by subchapter IV of chapter 169 of title 10.

(b)Sunset.—

(1)In general.—

Except as provided in paragraph (2), effective on September 30, 2025, the authority provided under subsection (a) shall expire.

(2)Exception.—

Paragraph (1) shall not apply to the authority provided under subsection (a) to make appointments to positions described under paragraph (5) of such subsection.

(c)Suspension of Other Hiring Authorities.—During the period beginning on the effective date of the regulations issued to carry out the hiring authority with respect to positions described in paragraphs (5) through (10) of subsection (a) and ending on the date described in subsection (b)(1), the Secretary of Defensemay not exercise or otherwise use any hiring authority provided under the following provisions of law:

(1)

Sections 1599c(a)(2) and 1705(h) of title 10.

(2)

Sections 1112 and 1113 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 1033).

(3)

Sections 1110 and 1643(a)(3) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat. 2450 and 2602).

(4)

Sections 559 and 1101 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 131 Stat. 1406 and 1627).

(Added Pub. L. 115–232, div. A, title XI, § 1101(a), Aug. 13, 2018, 132 Stat. 2000; amended Pub. L. 116–92, div. A, title XI, § 1109(a), Dec. 20, 2019, 133 Stat. 1598; Pub. L. 116–283, div. A, title XI, § 1117, Jan. 1, 2021, 134 Stat. 3897.)

5 - 4 - 9 - 6 FEDERAL EMERGENCY MANAGEMENT AGENCY PERSONNEL (§§ 10101 to 10106)

5 - 4 - 9 - 6 - 1 Definitions

For purposes of this chapter—

(1)

the term “Agency” means the Federal Emergency Management Agency;

(2)

the term “Administrator” means the Administrator of the Federal Emergency Management Agency;

(3)

the term “appropriate committees of Congress” has the meaning given the term in section 602 of the Post-Katrina Emergency Management Reform Act of 2006;

(4)

the term “Department” means the Department of Homeland Security; and

(5)

the term “Surge Capacity Force” refers to the Surge Capacity Force, described under section 624 of the Post-Katrina Emergency Management Reform Act of 2006.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1411.)

5 - 4 - 9 - 6 - 2 Strategic human capital plan

(a)Plan Development.—

Not later than 6 months after the date of enactment of this chapter, the Administrator shall develop and submit to the appropriate committees of Congress a strategic human capital plan to shape and improve the workforce of the Agency.

(b)Contents.—The strategic human capital plan shall include—

(1)a workforce gap analysis, including an assessment of—

(A)

the critical skills and competencies that will be needed in the workforce of the Agency to support the mission and responsibilities of, and effectively manage, the Agency during the 10-year period beginning on the date of enactment of this chapter;

(B)

the skills and competencies of the workforce of the Agency on the day before the date of enactment of this chapter and projected trends in that workforce, based on expected losses due to retirement and other attrition; and

(C)

the staffing levels of each category of employee, including gaps in the workforce of the Agency on the day before the date of enactment of this chapter and in the projected workforce of the Agency that should be addressed to ensure that the Agency has continued access to the critical skills and competencies described in subparagraph (A);

(2)a plan of action for developing and reshaping the workforce of the Agencyto address the gaps in critical skills and competencies identified under paragraph (1)(C), including—

(A)

specific recruitment and retention goals, including the use of the bonus authorities under this chapter as well as other bonus authorities (including the program objective of the Agency to be achieved through such goals);

(B)

specific strategies for developing, training, deploying, compensating, and motivating and retaining the Agency workforce and its ability to fulfill the Agency’s mission and responsibilities (including the program objectives of the Department and the Agency to be achieved through such strategies);

(C)

specific strategies for recruiting individuals who have served in multiple State agencies with emergency management responsibilities; and

(D)

specific strategies for the development, training, and coordinated and rapid deployment of the Surge Capacity Force; and

(3)a discussion that—

(A)

details the number of employees of the Department not employed by the Agency serving in the Surge Capacity Force and the qualifications or credentials of such individuals;

(B)

details the number of individuals not employed by the Departmentserving in the Surge Capacity Force and the qualifications or credentials of such individuals;

(C)

describes the training given to the Surge Capacity Force during the calendar year preceding the year of submission of the plan under subsection (c);

(D)

states whether the Surge Capacity Force is able to adequately prepare for, respond to, and recover from natural disasters, acts of terrorism, and other man-made disasters, including catastrophic incidents; and

(E)

describes any additional authorities or resources necessary to address any deficiencies in the Surge Capacity Force.

(c)Annual Updates.—

Not later than May 1, 2007, and May 1st of each of the next 5 succeeding years, the Administrator shall submit to the appropriate committees of Congress an update of the strategic human capital plan, including an assessment by theAdministrator, using results-oriented performance measures, of the progress of the Department and the Agency in implementing the strategic human capital plan.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1412.)

5 - 4 - 9 - 6 - 3 Career paths

(a)In General.—The Administrator shall—

(1)

ensure that appropriate career paths for personnel of the Agency are identified, including the education, training, experience, and assignments necessary for career progression within the Agency; and

(2)

publish information on the career paths described in paragraph (1).

(b)Education, Training, and Experience.—

The Administrator shall ensure that all personnel of the Agency are provided the opportunity to acquire the education, training, and experience necessary to qualify for promotion within the Agency, including, as appropriate, the opportunity to participate in the Rotation Program established under section 844 of the Homeland Security Act of 2002.

(c)Policy.—The Administrator shall establish a policy for assigning Agency personnel to positions that provides for a balance between—

(1)

the need for such personnel to serve in career enhancing positions; and

(2)the need to require service in a position for a sufficient period of time to provide the stability necessary—

(A)

to carry out the duties of that position; and

(B)

for responsibility and accountability for actions taken in that position.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1413.)

5 - 4 - 9 - 6 - 4 Recruitment bonuses

(a)In General.—

The Administrator may pay a bonus to an individual in order to recruit the individual for a position within the Agency that would otherwise be difficult to fill in the absence of such a bonus. Upon completion of the strategic human capital plan, such bonuses shall be paid in accordance with that plan.

(b)Bonus Amount.—

(1)In general.—

The amount of a bonus under this section shall be determined by the Administrator, but may not exceed 25 percent of the annual rate of basic pay of the position involved.

(2)Form of payment.—

A bonus under this section shall be paid in the form of a lump-sum payment and shall not be considered to be part of basic pay.

(c)Service Agreements.—Payment of a bonus under this section shall be contingent upon the employee entering into a written service agreement with the Agency. The agreement shall include—

(1)

the period of service the individual shall be required to complete in return for the bonus; and

(2)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(d)Eligibility.—A bonus under this section may not be paid to an individual who is appointed to or holds—

(1)

a position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(2)

a position in the Senior Executive Service as a noncareer appointee (as defined in section 3132(a)); or

(3)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.

(e)Termination.—

The authority to pay bonuses under this section shall terminate 5 years after the date of enactment of this chapter.

(f)Reports.—

(1)In general.—

The Agency shall submit to the appropriate committees of Congress, annually for each of the 5 years during which this section is in effect, a report on the operation of this section.

(2)Contents.—Each report submitted under this subsection shall include, with respect to the period covered by such report, a description of how the authority to pay bonuses under this section was used by the Agency, including—

(A)

the number and dollar amount of bonuses paid to individuals holding positions within each pay grade, pay level, or other pay classification; and

(B)

a determination of the extent to which such bonuses furthered the purposes of this section.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1414.)

5 - 4 - 9 - 6 - 5 Retention bonuses

(a)Authority.—The Administrator may pay, on a case-by-case basis, a bonus under this section to an employee of the Agency if—

(1)

the unusually high or unique qualifications of the employee or a special need of the Agency for the employee’s services makes it essential to retain the employee; and

(2)the Administrator determines that, in the absence of such a bonus, the employee would be likely to leave—

(A)

the Federal service; or

(B)

for a different position in the Federal service.

(b)Service Agreement.—Payment of a bonus under this section is contingent upon the employee entering into a written service agreement with the Agency to complete a period of service with the Agency. Such agreement shall include—

(1)

the period of service the individual shall be required to complete in return for the bonus; and

(2)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(c)Bonus Amount.—

(1)In general.—

The amount of a bonus under this section shall be determined by the Administrator, but may not exceed 25 percent of the annual rate of basic pay of the position involved.

(2)Form of payment.—

A bonus under this section shall be paid in the form of a lump-sum payment and shall not be considered to be part of basic pay.

(d)Limitation.—A bonus under this section—

(1)

may not be based on any period of service which is the basis for a recruitment bonus under section 10104;

(2)may not be paid to an individual who is appointed to or holds—

(A)

a position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(B)

a position in the Senior Executive Service as a noncareer appointee (as defined in section 3132(a)); or

(C)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character; and

(3)

upon completion of the strategic human capital plan, shall be paid in accordance with that plan.

(e)Termination of Authority.—

The authority to grant bonuses under this section shall expire 5 years after the date of enactment of this chapter.

(f)Reports.—

(1)In general.—

The Office of Personnel Management shall submit to the appropriate committees of Congress, annually for each of the first 5 years during which this section is in effect, a report on the operation of this section.

(A)

the number and dollar amount of bonuses paid to individuals holding positions within each pay grade, pay level, or other pay classification; and

(B)

a determination of the extent to which such bonuses furthered the purposes of this section.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1414.)

5 - 4 - 9 - 6 - 6 Quarterly report on vacancy rate in employee positions

(a)Initial Report.—

(1)In general.—

Not later than 3 months after the date of enactment of this chapter, the Administrator shall develop and submit to the appropriate committees of Congress a report on the vacancies in employee positions of the Agency.

(2)Contents.—The report under this subsection shall include—

(A)

vacancies of each category of employee position;

(B)

the number of applicants for each vacancy for which public notice has been given;

(C)

the length of time that each vacancy has been pending;

(D)

hiring-cycle time for each vacancy that has been filled; and

(E)

a plan for reducing the hiring-cycle time and reducing the current and anticipated vacancies with highly-qualified personnel.

(b)Quarterly Updates.—

Not later than 3 months after submission of the initial report, and every 3 months thereafter until 5 years after the date of enactment of this chapter, the Administrator shall submit to the appropriate committees of Congress an update of the report under subsection (a), including an assessment by theAdministrator of the progress of the Agency in filling vacant employee positions of the Agency.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1416.)

5 - 4 - 9 - 7 UNITED STATES SECRET SERVICE UNIFORMED DIVISION PERSONNEL (§§ 10201 to 10210)

5 - 4 - 9 - 7 - 1 Definitions

In this chapter—

(1)

the term “member” means an employee of the United States Secret ServiceUniformed Division having the authorities described under section 3056A(b) of title 18;

(2)

the term “Secretary” means the Secretary of the Department of Homeland Security; and

(3)

the term “United States Secret Service Uniformed Division” has the meaning given that term under section 3056A of title 18.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3033.)

5 - 4 - 9 - 7 - 2 Authorities

(a)In General.—The Secretary is authorized to—

(1)

fix and adjust rates of basic pay for members of the United States Secret Service Uniformed Division, subject to the requirements of this chapter;

(2)

determine what constitutes an acceptable level of competence for the purposes of section 10205;

(3)

establish and determine the positions at the Officer and Sergeant ranks to be included as technician positions; and

(4)

determine the rate of basic pay of a member who is changed or demoted to a lower rank, in accordance with section 10208.

(b)Delegation of Authority.—

The Secretary is authorized to delegate to the designated agent or agents of the Secretary, any power or function vested in the Secretary under in [1] this chapter.

(c)Regulations.—

The Secretary may prescribe such regulations as may be necessary to administer this chapter.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3034.)

5 - 4 - 9 - 7 - 3 Basic pay

(a)In General.—

The annual rates of basic pay of members of the United States Secret ServiceUniformed Division shall be fixed in accordance with the following schedule of rates, except that the payable annual rate of basic pay for positions at the Lieutenant, Captain, and Inspector ranks is limited to 95 percent of the rate of pay for level V of the Executive Schedule under subchapter II of chapter 53.

Rank	Step 1	Step 2	Step 3	Step 4	Step 5	Step 6	Step 7	Step 8	Step 9	Step 10	Step 11	Step 12	Step 13
1 So in original. Probably should be followed by “for”.
Officer	$44,000	$46,640	$49,280	$51,920	$54,560	$57,200	$59,840	$62,480	$65,120	$67,760	$70,400	$73,040	$75,680
Sergeant	..........	..........	..........	59,708	62,744	65,780	68,816	71,852	74,888	77,924	80,960	83,996	87,032
Lieutenant	..........	..........	..........	..........	69,018	72,358	75,698	79,038	82,378	85,718	89,058	92,398	95,738
Captain	..........	..........	..........	..........	..........	79,594	83,268	86,942	90,616	94,290	97,964	101,638	105,312
Inspector	..........	..........	..........	..........	..........	91,533	95,758	99,983	104,208	108,433	112,658	116,883	121,108
Deputy Chief	The rate of basic pay for Deputy Chief positions will be equal to 95 percent of the rate of pay for level V of the Executive Schedule.
Assistant Chief	The rate of basic pay 1 the Assistant Chief position will be equal to 95 percent of the rate of pay for level V of the Executive Schedule.
Chief	The rate of basic pay 1 the Chief position will be equal to the rate of pay for level V of the Executive Schedule.

(b)Schedule Adjustment.—

(1)

(A)

Effective at the beginning of the first pay period commencing on or after the first day of the month in which an adjustment in the rates of basic pay under the General Schedule takes effect under section 5303 or other authority, the schedule of annual rates of basic pay of members (except the Deputy Chiefs, Assistant Chief and Chief) shall be adjusted by the Secretary by a percentage amount corresponding to the percentage adjustment made in the rates of pay under the General Schedule.

(B)The Secretary may establish a methodology of schedule adjustment that—

(i)

results in uniform fixed-dollar step increments within any given rank; and

(ii)

preserves the established percentage differences among rates of different ranks at the same step position.

(2)

Notwithstanding paragraph (1), the payable annual rate of basic pay for positions at the Lieutenant, Captain, and Inspector ranks after adjustment under paragraph (1) may not exceed 95 percent of the rate of pay for level V of the Executive Schedule under subchapter II of chapter 53.

(3)

Locality-based comparability payments authorized under section 5304 shall be applicable to the basic pay for all ranks under this section, except locality-based comparability payments may not be paid at a rate which, when added to the rate of basic pay otherwise payable to the member, would cause the total to exceed the rate of basic pay payable for level IV of the Executive Schedule.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3034.)

5 - 4 - 9 - 7 - 4 Rate of pay for original appointments

(a)In General.—

Except as provided in subsection (b), all original appointments shall be made at the minimum rate of basic pay for the Officer rank set forth in the schedule in section 10203.

(b)Exception for Superior Qualifications or Special Need.—

The Director of the United States Secret Service or the designee of the Director may appoint an individual at a rate above the minimum rate of basic pay for the Officer rank based on the individual’s superior qualifications or a special need of the Government for the individual’s services.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3036.)

5 - 4 - 9 - 7 - 5 Service step adjustments

(a)Definition.—

In this section, the term “calendar week of active service” includes all periods of leave with pay or other paid time off, and periods of non-pay status which do not cumulatively equal one 40-hour workweek.

(b)Adjustments.—Each member whose current performance is at an acceptable level of competence shall have a service step adjustment as follows:

(1)

Each member in service step 1, 2, or 3 shall be advanced successively to the next higher service step at the beginning of the first pay period immediately following the completion of 52 calendar weeks of active service in the member’s service step.

(2)

Each member in service step 4, 5, 6, 7, 8, 9, 10, or 11 shall be advanced successively to the next higher service step at the beginning of the first pay period immediately following the completion of 104 calendar weeks of active service in the member’s service step.

(3)

Each member in service step 12 shall be advanced successively to the next higher service step at the beginning of the first pay period immediately following the completion of 156 calendar weeks of active service in the member’s service step.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3036.)

5 - 4 - 9 - 7 - 6 Technician positions

(a)In General.—

(1)

Each member whose position is determined under section 10202(a)(3) to be included as a technician position shall, on or after such date, receive, in addition to the member’s scheduled rate of basic pay, an amount equal to 6 percent of the sum of such member’s rate of basic pay and the applicable locality-based comparability payment.

(2)

A member described in this subsection shall receive the additional compensation authorized by this subsection until such time as the member’s position is determined under section 10202(a)(3) not to be a technician position, or until the member no longer occupies such position, whichever occurs first.

(3)

The additional compensation authorized by this subsection shall be paid to a member in the same manner and at the same time as the member’s basic pay is paid.

(b)Exceptions.—

(1)

Except as provided in paragraph (2), the additional compensation authorized by subsection (a)(1) shall be considered as basic pay for all purposes, including section 8401(4).

(2)The additional compensation authorized by subsection (a)(1) shall not be considered as basic pay for the purposes of—

(A)

section 5304; or

(B)

section 7511(a)(4).

(3)

The loss of the additional compensation authorized by subsection (a)(1) shall not constitute an adverse action for the purposes of section 7512.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 7 Promotions

(a)In General.—

Each member who is promoted to a higher rank shall receive basic pay at the same step at which such member was being compensated prior to the date of the promotion.

(b)Credit for Service.—

For the purposes of a service step adjustment under section 10205, periods of service at the lower rank shall be credited in the same manner as if it was service at the rank to which the employee is promoted.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 8 Demotions

When a member is changed or demoted from any rank to a lower rank, the Secretary may fix the member’s rate of basic pay at the rate of pay for any step in the lower rank which does not exceed the lowest step in the lower rank for which the rate of basic pay is equal to or greater than the member’s existing rate of basic pay.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 9 Clothing allowances

(a)In General.—

In addition to the benefits provided under section 5901, the Director of the United States Secret Service or the designee of the Director is authorized to provide a clothing allowance to a member assigned to perform duties in normal business or work attire purchased at the discretion of the employee. Such clothing allowance shall not to be treated as part of the member’s basic pay for any purpose (including retirement purposes) and shall not be used for the purpose of computing the member’s overtime pay, pay during leave or other paid time off, lump-sum payments under section 5551 or section 5552, workers’ compensation, or any other benefit. Such allowance for any member may be discontinued at any time upon written notification by the Director of the United States Secret Service or the designee of the Director.

(b)Maximum Amount Authorized.—

A clothing allowance authorized under this section shall not exceed $500 per annum.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 10 Reporting requirement

Not later than 3 years after the date of the enactment of this chapter, the Secretary shall prepare and transmit to Congress a report on the operation of this chapter. The report shall include—

(1)

an assessment of the effectiveness of this chapter with respect to efforts of the Secretary to recruit and retain well-qualified personnel; and

(2)

recommendations for any legislation or administrative action which the Secretary considers appropriate.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3038.)

5 - 4 - 9 Miscellaneous (§§ 9501 to 10210)

5 - 4 - 9 - 1 PERSONNEL FLEXIBILITIES RELATING TO THE INTERNAL REVENUE SERVICE (§§ 9501 to 9510)

5 - 4 - 9 - 1 - 1 Internal Revenue Service personnel flexibilities

(a)Any flexibilities provided by sections 9502 through 9510 of this chapter shall be exercised in a manner consistent with—

(1)

chapter 23 (relating to merit system principles and prohibited personnel practices);

(2)

provisions relating to preference eligibles;

(3)

except as otherwise specifically provided, section 5307 (relating to the aggregate limitation on pay);

(4)

except as otherwise specifically provided, chapter 71 (relating to labor-management relations); and

(5)

subject to subsections (b) and (c) of section 1104, as though such authorities were delegated to the Secretary of the Treasury under section 1104(a)(2).

(b)

The Secretary of the Treasury shall provide the Office of Personnel Management with any information that Office requires in carrying out its responsibilities under this section.

(c)

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 712.)

5 - 4 - 9 - 1 - 2 Pay authority for critical positions

(a)

(b)

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 712; amended Pub. L. 110–161, div. D, title I, § 107, Dec. 26, 2007, 121 Stat. 1977.)

5 - 4 - 9 - 1 - 3 Streamlined critical pay authority

(1)the positions—

(A)

require expertise of an extremely high level in an administrative, technical, or professional field; and

(B)

are critical to the Internal Revenue Service’s successful accomplishment of an important mission;

(2)

exercise of the authority is necessary to recruit or retain an individual exceptionally well qualified for the position;

(3)

the number of such positions does not exceed 40 at any one time;

(4)

designation of such positions are approved by the Secretary of the Treasury;

(5)

the terms of such appointments are limited to no more than 4 years;

(6)

appointees to such positions were not Internal Revenue Serviceemployees prior to June 1, 1998;

(7)

total annual compensation for any appointee to such positions does not exceed the highest total annual compensation payable at the rate determined under section 104 of title 3; and

(8)

all such positions are excluded from the collective bargaining unit.

(b)

Individuals appointed under this section shall not be considered to be employees for purposes of subchapter II of chapter 75.

5 - 4 - 9 - 1 - 4 Recruitment, retention, relocation incentives, and relocation expenses

(a)

(b)

5 - 4 - 9 - 1 - 5 Performance awards for senior executives

(a)

(b)

(c)

Any award in excess of 20 percent of an executive’s rate of basic pay shall be approved by the Secretary of the Treasury.

(d)

(e)

5 - 4 - 9 - 1 - 6 Limited appointments to career reserved Senior Executive Service positions

(a)In the application of section 3132, a “career reserved position” in the Internal Revenue Service means a position designated under section 3132(b) which may be filled only by—

(1)

a career appointee; or

(2)a limited emergency appointee or a limited term appointee—

(A)

who, immediately upon entering the career reserved position, was serving under a career or career-conditional appointment outside the Senior Executive Service; or

(B)

whose limited emergency or limited term appointment is approved in advance by the Office of Personnel Management.

(b)

(1)

(2)Notwithstanding section 3132—

(A)

the term of an appointee described under subsection (a)(2) may be for any period not to exceed 3 years; and

(B)such an appointee may serve—

(i)

two such terms; or

(ii)

two such terms in addition to any unexpired term applicable at the time of appointment.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 714.)

5 - 4 - 9 - 1 - 7 Streamlined demonstration project authority

(a)

(b)In applying section 4703 to a demonstration project described in section 4701(a)(4) which involves the Internal Revenue Service—

(1)

section 4703(b)(1) shall be deemed to read as follows:

“(1)

develop a plan for such project which describes its purpose, the employees to be covered, the project itself, its anticipated outcomes, and the method of evaluating the project;”;

(2)

section 4703(b)(3) shall not apply;

(3)

the 180-day notification period in section 4703(b)(4) shall be deemed to be a notification period of 30 days;

(4)

section 4703(b)(6) shall be deemed to read as follows:

“(6)

provides each House of Congress with the final version of the plan.”;

(5)

section 4703(c)(1) shall be deemed to read as follows:

“(1)

subchapter V of chapter 63 or subpart G of part III of this title;”;

(6)

the requirements of paragraphs (1)(A) and (2) of section 4703(d) shall not apply; and

(7)

(c)

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 715.)

5 - 4 - 9 - 1 - 8 General workforce performance management system

(1)maintains individual accountability by—

(A)

(B)

making periodic determinations of whether each employee meets or does not meet the employee’s established retention standards; and

(i)

Reassignment.

(ii)

An action under chapter 43 or chapter 75 of this title.

(iii)

Any other appropriate action to resolve the performance problem; and

(2)except as provided under section 1204 of the Internal Revenue Service Restructuring and Reform Act of 1998, strengthens the system’s effectiveness by—

(A)

(B)

using such goals and objectives to make performance distinctions among employees or groups of employees; and

(C)

(b)

(1)

(2)

(c)

(1)

(2)

A cash award under subchapter I of chapter 45 may be granted to an employee of the Internal Revenue Service without the need for any approval under section 4502(b).

(d)

(1)

In applying sections 4303(b)(1)(A) and 7513(b)(1) to employees of the Internal Revenue Service, “30 days” may be deemed to be “15 days”.

(2)

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 715; amended Pub. L. 107–217, § 3(a)(3), Aug. 21, 2002, 116 Stat. 1295.)

5 - 4 - 9 - 1 - 9 General workforce classification and pay

(a)

(b)

(1)

(A)

(B)

(2)

The Office of Personnel Management may require the Secretary of the Treasury to submit information relating to broad-banded systems at the Internal Revenue Service.

(3)

(4)The criteria to be prescribed by the Office of Personnel Managementshall, at a minimum—

(A)

ensure that the structure of any broad-banded system maintains the principle of equal pay for substantially equal work;

(B)

establish the minimum and maximum number of grades that may be combined into pay bands;

(C)

establish requirements for setting minimum and maximum rates of pay in a pay band;

(D)

establish requirements for adjusting the pay of an employee within a pay band;

(E)

establish requirements for setting the pay of a supervisory employee whose position is in a pay band or who supervises employees whose positions are in pay bands; and

(F)

(c)

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 716.)

5 - 4 - 9 - 1 - 10 General workforce staffing

(a)

(A)

the employee has completed, in the competitive service, 2 years of current continuous service under a term appointment or any combination of term appointments;

(B)

such term appointment or appointments were made under competitive procedures prescribed for permanent appointments;

(C)

(D)

the vacancy announcement for the term appointment from which the conversion is made stated that there was a potential for subsequent conversion to a permanent appointment.

(2)

An appointment under this section may be made only to a position in the same line of work as a position to which the employee received a term appointment under competitive procedures.

(b)

(1)

(2)

(3)

(4)

(5)

(c)

The Secretary of the Treasury may detail employees among the offices of the Internal Revenue Service without regard to the 120-day limitation in section 3341(b).

(d)

(e)Nothing in this section exempts the Secretary of the Treasury from—

(1)

any employment priority established under direction of the President for the placement of surplus or displaced employees; or

(2)

any obligation under a court order or decree relating to the employment practices of the Internal Revenue Service or the Department of the Treasury.

(Added Pub. L. 105–206, title I, § 1201(a), July 22, 1998, 112 Stat. 717; amended Pub. L. 114–137, § 2(c), Mar. 18, 2016, 130 Stat. 312.)

5 - 4 - 9 - 2 PERSONNEL FLEXIBILITIES RELATING TO LAND MANAGEMENT AGENCIES (§§ 9601 to 9602)

5 - 4 - 9 - 2 - 1 Definitions

For purposes of this chapter—

(1)the term “land management agency” means—

(A)

the Forest Service of the Department of Agriculture;

(B)

the Bureau of Land Management of the Department of the Interior;

(C)

the National Park Service of the Department of the Interior;

(D)

the Fish and Wildlife Service of the Department of the Interior;

(E)

the Bureau of Indian Affairs of the Department of the Interior; and

(F)

the Bureau of Reclamation of the Department of the Interior; and

(2)

the term “time-limited appointment” includes a temporary appointment and a term appointment, as defined by the Office of Personnel Management.

(Added Pub. L. 114–47, § 2(a), Aug. 7, 2015, 129 Stat. 485.)

5 - 4 - 9 - 2 - 2 Competitive service; time-limited appointments

(1)

the employee was appointed initially under open, competitive examination under subchapter I of chapter 33 to the time-limited appointment;

(2)

the employee has served under 1 or more time-limited appointments by aland management agency for a period or periods totaling more than 24 months without a break of 2 or more years; and

(3)

the employee’s performance has been at an acceptable level of performance throughout the period or periods (as the case may be) referred to in paragraph (2).

(b)

(c)An individual appointed under this section—

(1)

becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and

(2)

acquires competitive status upon appointment.

(1)

such employee applies for a position covered by this section within the period of 2 years after the most recent date of separation; and

(2)

such employee’s most recent separation was for reasons other than misconduct or performance.

(e)

The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out this section.

(Added Pub. L. 114–47, § 2(a), Aug. 7, 2015, 129 Stat. 485; amended Pub. L. 114–328, div. A, title XI, § 1135, Dec. 23, 2016, 130 Stat. 2459.)

5 - 4 - 9 - 3 DEPARTMENT OF HOMELAND SECURITY (§ 9701)

5 - 4 - 9 - 3 - 1 Establishment of human resources management system

(a)In General.—

(b)System Requirements.—Any system established under subsection (a) shall—

(1)

be flexible;

(2)

be contemporary;

(3)not waive, modify, or otherwise affect—

(A)

(B)

any provision of section 2302, relating to prohibited personnel practices;

(C)

(i)

any provision of law referred to in section 2302(b)(1), (8), and (9); or

(ii)any provision of law implementing any provision of law referred to in section 2302(b)(1), (8), and (9) by—

(I)

providing for equal employment opportunity through affirmative action; or

(II)

providing any right or remedy available to any employee or applicant for employment in the civil service;

(D)

any other provision of this part (as described in subsection (c)); or

(E)

any rule or regulation prescribed under any provision of law referred to in any of the preceding subparagraphs of this paragraph;

(4)

(5)

permit the use of a category rating system for evaluating applicants for positions in the competitive service.

(1)

subparts A, B, E, G, and H of this part; and

(2)

chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and this chapter.

(d)Limitations Relating to Pay.—Nothing in this section shall constitute authority—

(1)to modify the pay of any employee who serves in—

(A)

an Executive Schedule position under subchapter II of chapter 53 of title 5, United States Code; or

(B)

a position for which the rate of basic pay is fixed in statute by reference to a section or level under subchapter II of chapter 53 of such title 5;

(2)

to fix pay for any employee or position at an annual rate greater than the maximum amount of cash compensation allowable under section 5307 of such title 5 in a year; or

(3)

to exempt any employee from the application of such section 5307.

(e)Provisions to Ensure Collaboration With Employee Representatives.—

(A)Notice of proposal.—The Secretary and the Director shall, with respect to any proposed system or adjustment—

(i)

(ii)

give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposal; and

(iii)

give any recommendations received from any such representatives under clause (ii) full and fair consideration in deciding whether or how to proceed with the proposal.

(i)

notify Congress of those parts of the proposal, together with the recommendations of employee representatives;

(ii)

(iii)

(C)Implementation.—

(i)

(ii)

(iii)

(D)Continuing collaboration.—If a proposal described in subparagraph (A) is implemented, the Secretary and the Director shall—

(i)

develop a method for each employee representative to participate in any further planning or development which might become necessary; and

(ii)

give each employee representative adequate access to information to make that participation productive.

(A)

(B)

(C)

(D)

the selection of representatives in a manner consistent with the relative number of employees represented by the organizations or other representatives involved.

(f)Provisions Relating to Appellate Procedures.—

(1)Sense of congress.—It is the sense of Congress that—

(A)

employees of the Department are entitled to fair treatment in any appeals that they bring in decisions relating to their employment; and

(B)in prescribing regulations for any such appeals procedures, the Secretary and the Director of the Office of Personnel Management—

(i)

should ensure that employees of the Department are afforded the protections of due process; and

(ii)

toward that end, should be required to consult with the Merit Systems Protection Board before issuing any such regulations.

(2)Requirements.—Any regulations under this section which relate to any matters within the purview of chapter 77—

(A)

shall be issued only after consultation with the Merit Systems Protection Board;

(B)shall ensure the availability of procedures which shall—

(i)

be consistent with requirements of due process; and

(ii)

provide, to the maximum extent practicable, for the expeditious handling of any matters involving the Department; and

(C)

(g)Provisions Relating to Labor-Management Relations.—

Nothing in this section shall be construed as conferring authority on the Secretary of Homeland Security to modify any of the provisions of section 842 of the Homeland Security Act of 2002.

(h)Sunset Provision.—

(Added Pub. L. 107–296, title VIII, § 841(a)(2), Nov. 25, 2002, 116 Stat. 2230.)

5 - 4 - 9 - 4 NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (§§ 9801 to 9815)

5 - 4 - 9 - 4 - 1 Definitions

For purposes of this chapter—

(1)

the term “Administration” means the National Aeronautics and Space Administration;

(2)

the term “Administrator” means the Administrator of the National Aeronautics and Space Administration;

(A)

of the inability to fill positions; or

(B)

employees do not possess the requisite skills;

(4)

the term “employee” means an individual employed in or under the Administration;

(5)

the term “workforce plan” means the plan required under section 9802(a);

(6)the term “appropriate committees of Congress” means—

(A)

the Committees on Government Reform, Science, and Appropriations of the House of Representatives; and

(B)

the Committees on Governmental Affairs, Commerce, Science, and Transportation, and Appropriations of the Senate;

(7)

the term “redesignation bonus” means a bonus under section 9804 paid to an individual described in subsection (a)(2) thereof;

(8)

the term “supervisor” has the meaning given such term by section 7103(a)(10); and

(9)

the term “management official” has the meaning given such term by section 7103(a)(11).

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 461.)

5 - 4 - 9 - 4 - 2 Planning, notification, and reporting requirements

(a)

(b)A workforce plan shall include a description of—

(1)

each critical need of the Administration and the criteria used in the identification of that need;

(2)

(A)the functions, approximate number, and classes or other categories of positions or employees that—

(i)

address critical needs; and

(ii)

would be eligible for each authority proposed to be exercised under this chapter; and

(B)

how the exercise of those authorities with respect to the eligible positions or employees involved would address each critical needidentified under paragraph (1);

(3)

(A)

any critical need identified under paragraph (1) which would not be addressed by the authorities made available under this chapter; and

(B)

the reasons why those needs would not be so addressed;

(4)

(5)

the safeguards or other measures that will be applied to ensure that this chapter is carried out in a manner consistent with merit system principles;

(6)

the means by which employees will be afforded the notification required under subsections (c) and (d)(1)(B);

(7)

the methods that will be used to determine if the authorities exercised under this chapter have successfully addressed each critical need identified under paragraph (1);

(8)

(A)

the recruitment methods used by the Administration before the enactment of this chapter to recruit highly qualified individuals; and

(B)the changes the Administration will implement after the enactment of this chapter in order to improve its recruitment of highly qualified individuals, including how it intends to use—

(i)

nongovernmental recruitment or placement agencies; and

(ii)

Internet technologies; and

(9)

(c)

(d)

(1)

(A)

(B)

(2)

Any reference in this chapter or any other provision of law to the workforce plan shall be considered to include any modification made in accordance with this subsection.

(e)Before submitting any written plan under subsection (a) (or modification under subsection (d)) to the Office of Personnel Management, the Administrator shall—

(1)

provide to each employee representative representing any employeeswho might be affected by such plan (or modification) a copy of the proposed plan (or modification);

(2)

give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposed plan (or modification); and

(3)

(f)

None of the workforce authorities made available under this chapter may be exercised in a manner inconsistent with the workforce plan.

(g)

(1)

an evaluation, using the methods described in subsection (b)(7), of whether the authorities exercised under this chapter successfully addressed each critical need identified under subsection (b)(1);

(2)

to the extent that they did not, an explanation of the reasons why any critical need (apart from the ones under subsection (b)(3)) was not successfully addressed; and

(3)

recommendations for how the Administration could address any remaining critical need and could prevent those that have been addressed from recurring.

(i)

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 462.)

5 - 4 - 9 - 4 - 3 Restrictions

(a)

None of the workforce authorities made available under this chapter may be exercised with respect to any officer who is appointed by the President, by and with the advice and consent of the Senate.

(b)

Unless specifically stated otherwise, all workforce authorities made available under this chapter shall be subject to section 5307.

(c)

(1)

None of the workforce authorities made available under section 9804, 9805, 9806, 9807, 9809, 9812, 9813, 9814, or 9815 may be exercised with respect to a political appointee.

(2)For purposes of this subsection, the term “political appointee” means anemployee who holds—

(A)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character; or

(B)

a position in the Senior Executive Service as a noncareer appointee (as such term is defined in section 3132(a)).

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 464.)

5 - 4 - 9 - 4 - 4 Recruitment, redesignation, and relocation bonuses

(a)Notwithstanding section 5753, the Administrator may pay a bonus to an individual, in accordance with the workforce plan and subject to the limitations in this section, if—

(1)

the Administrator determines that the Administration would be likely, in the absence of a bonus, to encounter difficulty in filling a position; and

(2)the individual—

(A)

is newly appointed as an employee of the Federal Government;

(B)

is currently employed by the Federal Government and is newly appointed to another position in the same geographic area; or

(C)

is currently employed by the Federal Government and is required to relocate to a different geographic area to accept a position with the Administration.

(b)If the position is described as addressing a critical need in the workforce planunder section 9802(b)(2)(A), the amount of a bonus may not exceed—

(1)

(2)

100 percent of the employee’s annual rate of basic pay (including comparability payments under sections 5304 and 5304a) as of the beginning of the service period.

(c)

(d)

(1)

(A)

Payment of a bonus under this section shall be contingent upon the individual entering into a service agreement with the Administration.

(B)At a minimum, the service agreement shall include—

(i)

the required service period;

(ii)

the method of payment, including a payment schedule, which may include a lump-sum payment, installment payments, or a combination thereof;

(iii)

the amount of the bonus and the basis for calculating that amount; and

(iv)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(2)

(3)

A bonus under this section may not be considered to be part of the basic pay of an employee.

(e)

(f)

No more than 25 percent of the total amount in bonuses awarded under subsection (a) in any year may be awarded to supervisors or management officials.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 464.)

5 - 4 - 9 - 4 - 5 Retention bonuses

(1)

the unusually high or unique qualifications of the employee or a special need of the Administration for the employee’s services makes it essential to retain the employee; and

(2)

the employee would be likely to leave in the absence of a retention bonus.

(b)

(c)

(d)

(1)

(A)

Payment of a bonus under this section shall be contingent upon the employee entering into a service agreement with the Administration.

(B)At a minimum, the service agreement shall include—

(i)

the required service period;

(ii)

the method of payment, including a payment schedule, which may include a lump-sum payment, installment payments, or a combination thereof;

(iii)

the amount of the bonus and the basis for calculating the amount; and

(iv)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(2)

(3)

(e)

A bonus under this section may not be considered to be part of the basic pay of an employee.

(f)

An employee is not entitled to a retention bonus under this section during a service period previously established for that employee under section 5753 or under section 9804.

(g)

No more than 25 percent of the total amount in bonuses awarded under subsection (a) in any year may be awarded to supervisors or management officials.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 465.)

5 - 4 - 9 - 4 - 6 Term appointments

(a)

The Administrator may authorize term appointments within the Administration under subchapter I of chapter 33, for a period of not less than 1 year and not more than 6 years.

(1)

such individual was appointed under open, competitive examination under subchapter I of chapter 33 to the term position;

(2)

the announcement for the term appointment from which the conversion is made stated that there was potential for subsequent conversion to a career-conditional or career appointment;

(3)

the employee has completed at least 2 years of current continuous service under a term appointment in the competitive service;

(4)

the employee’s performance under such term appointment was at least fully successful or equivalent; and

(5)

(c)

(d)

An employee converted under this section becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure.

(e)

An employee converted to career or career-conditional employment under this section acquires competitive status upon conversion.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 466.)

5 - 4 - 9 - 4 - 7 Pay authority for critical positions

(a)In this section, the term “position” means—

(1)

a position to which chapter 51 applies, including a position in the Senior Executive Service;

(2)

a position under the Executive Schedule under sections 5312 through 5317;

(3)

a position established under section 3104; or

(4)

a senior-level position to which section 5376(a)(1) applies.

(b)Authority under this section—

(1)may be exercised only with respect to a position that—

(A)

is described as addressing a critical need in the workforce plan under section 9802(b)(2)(A); and

(B)

requires expertise of an extremely high level in a scientific, technical, professional, or administrative field;

(2)

may be exercised only to the extent necessary to recruit or retain an individual exceptionally well qualified for the position; and

(3)

may be exercised only in retaining employees of the Administration or in appointing individuals who were not employees of another Federal agency as defined under section 5102(a)(1).

(c)

(1)

Notwithstanding section 5377, the Administrator may fix the rate of basic pay for a position in the Administration in accordance with this section. TheAdministrator may not delegate this authority.

(2)

The number of positions with pay fixed under this section may not exceed 10 at any time.

(d)

(1)

(2)

The annual rate of basic pay fixed under this section may not exceed the per annum rate of salary payable under section 104 of title 3.

(3)

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 467.)

5 - 4 - 9 - 4 - 8 Assignments of intergovernmental personnel

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 468.)

5 - 4 - 9 - 4 - 9 Science and technology scholarship program

(a)

(1)

(2)

(3)

(b)In order to be eligible to participate in the Program, an individual must—

(1)

be enrolled or accepted for enrollment as a full-time student at an institution of higher education in an academic field or discipline described in the list made available under subsection (d);

(2)

be a United States citizen or permanent resident; and

(3)

at the time of the initial scholarship award, not be an employee (as defined in section 2105).

(c)

(d)

The Administrator shall make publicly available a list of academic programsand fields of study for which scholarships under the Program may be utilized and shall update the list as necessary.

(e)

(1)

(2)

An individual may not receive a scholarship under this section for more than 4 academic years, unless the Administrator grants a waiver.

(3)

The dollar amount of a scholarship under this section for an academic year shall be determined under regulations issued by the Administrator, but shall in no case exceed the cost of attendance.

(4)

A scholarship provided under this section may be expended for tuition, fees, and other authorized expenses as established by the Administrator by regulation.

(5)

(f)

(1)

(2)

(A)

(B)

(g)

(1)

(A)

the total amount of scholarships received by such individual under this section; plus

(B)

(h)

(1)

Any obligation of an individual incurred under the Program (or a contractual agreement thereunder) for service or payment shall be canceled upon the death of the individual.

(2)

(i)For purposes of this section—

(1)

the term “cost of attendance” has the meaning given that term in section 472 of the Higher Education Act of 1965;

(2)

the term “institution of higher education” has the meaning given that term in section 101(a) of the Higher Education Act of 1965; and

(3)

the term “Program” means the National Aeronautics and Space Administration Science and Technology Scholarship Program established under this section.

(j)

(1)

There is authorized to be appropriated to the Administration for the Program $10,000,000 for each fiscal year.

(2)

Amounts appropriated under this section shall remain available for 2 fiscal years.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 468; amended Pub. L. 109–155, title VII, § 703(a), Dec. 30, 2005, 119 Stat. 2936.)

5 - 4 - 9 - 4 - 10 Distinguished scholar appointment authority

(a)In this section—

(1)the term “professional position” means a position that is classified to an occupational series identified by the Office of Personnel Management as a position that—

(A)

(B)

is covered by the Group Coverage Qualification Standard for Professional and Scientific Positions; and

(2)

(1)with respect to a position at the GS–7 level, the individual—

(A)

(B)

achieved a cumulative grade point average of 3.0 or higher on a 4.0 scale and a grade point average of 3.5 or higher for courses in the field of study required to qualify for the position;

(2)with respect to a position at the GS–9 level, the individual—

(A)

(B)

achieved a cumulative grade point average of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position;

(3)with respect to a position at the GS–11 level, the individual—

(A)

(B)

achieved a cumulative grade point average of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position; or

(4)with respect to a research position at the GS–12 level, the individual—

(A)

(B)

achieved a cumulative grade point average of 3.5 or higher on a 4.0 scale in graduate coursework in the field of study required for the position.

(c)

In making any selections under this section, preference eligibles who meet the criteria for distinguished scholar appointments shall be considered ahead of nonpreference eligibles.

(d)

An appointment made under this authority shall be a career-conditional appointment in the competitive civil service.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 470.)

5 - 4 - 9 - 4 - 11 Travel and transportation expenses of certain new appointees

(a)In this section, the term “new appointee” means—

(1)a person newly appointed or reinstated to Federal service to the Administration to—

(A)

a career or career-conditional appointment or an excepted service appointment to a continuing position;

(B)

a term appointment;

(C)

an excepted service appointment that provides for noncompetitive conversion to a career or career-conditional appointment;

(D)

a career or limited term Senior Executive Service appointment;

(E)

an appointment made under section 20113(b)(1) of title 51;

(F)

an appointment to a position established under section 3104; or

(G)

an appointment to a position established under section 5108; or

(2)

a student trainee who, upon completion of academic work, is converted to an appointment in the Administration that is identified in paragraph (1) in accordance with an appropriate authority.

(b)

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 472; amended Pub. L. 111–314, § 4(a), Dec. 18, 2010, 124 Stat. 3440.)

5 - 4 - 9 - 4 - 12 Annual leave enhancements

(a)In this section—

(1)the term “newly appointed employee” means an individual who is first appointed—

(A)

as an employee of the Federal Government; or

(B)as an employee of the Federal Government following a break in service of at least 90 days after that individual’s last period of Federal employment, other than—

(i)

employment under the Student Educational Employment Program administered by the Office of Personnel Management;

(ii)

employment as a law clerk trainee;

(iii)

employment under a short-term temporary appointing authority while a student during periods of vacation from the educational institution at which the student is enrolled;

(iv)

employment under a provisional appointment if the new appointment is permanent and immediately follows the provisional appointment; or

(v)

employment under a temporary appointment that is neither full-time nor the principal employment of the individual;

(2)the term “period of qualified non-Federal service” means any period of service performed by an individual that—

(A)

was performed in a position the duties of which were directly related to the duties of the position in the Administration which that individual will fill as a newly appointed employee; and

(B)

except for this section, would not otherwise be service performed by an employee for purposes of section 6303; and

(3)

the term “directly related to the duties of the position” means duties and responsibilities in the same line of work which require similar qualifications.

(b)

(1)

(2)

(c)

(1)

(2)

The accrual rate established under this subsection shall continue to apply to the employee so long as such employee serves in or under the Administration.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 472.)

5 - 4 - 9 - 4 - 13 Limited appointments to Senior Executive Service positions

(a)In this section—

(1)the term “career reserved position” means a position in theAdministration designated under section 3132(b) which may be filled only by—

(A)

a career appointee; or

(B)a limited emergency appointee or a limited term appointee—

(i)

who, immediately before entering the career reserved position, was serving under a career or career-conditional appointment outside the Senior Executive Service; or

(ii)

whose limited emergency or limited term appointment is approved in advance by the Office of Personnel Management;

(2)

the term “limited emergency appointee” has the meaning given under section 3132; and

(3)

(b)

(c)Notwithstanding sections 3132 and 3394(b)—

(1)the Administrator may appoint an individual to any Senior Executive Service position in the Administration as a limited term appointee under this section for a period of—

(A)

4 years or less to a position the duties of which will expire at the end of such term; or

(B)

1 year or less to a position the duties of which are continuing; and

(2)in rare circumstances, the Administrator may authorize an extension of a limited appointment under—

(A)

paragraph (1)(A) for a period not to exceed 2 years; and

(B)

paragraph (1)(B) for a period not to exceed 1 year.

(d)

(e)Notwithstanding section 3394(b) and section 3395—

(1)

(2)

(f)

A limited term appointee may not serve more than 7 consecutive years under any combination of limited appointments.

(g)

Notwithstanding section 5384, the Administrator may authorize performance awards to limited term appointees in the Administration in the same amounts and in the same manner as career appointees.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 473.)

5 - 4 - 9 - 4 - 14 Qualifications pay

(a)Notwithstanding section 5334, the Administrator may set the pay of anemployee paid under the General Schedule at any step within the pay range for the grade of the position, if such employee—

(1)

possesses unusually high or unique qualifications; and

(2)is assigned—

(A)

new duties, without a change of position; or

(B)

to a new position.

(b)

(c)

Pay as set under this section is basic pay for such purposes as pay set under section 5334.

(d)

(e)Before setting any employee’s pay under this section, the Administrator shall submit a plan to the Office of Personnel Management and the appropriate committees of Congress, that includes—

(1)

criteria for approval of actions to set pay under this section;

(2)

the level of approval required to set pay under this section;

(3)

all types of actions and positions to be covered;

(4)

the relationship between the exercise of authority under this section and the use of other pay incentives; and

(5)

a process to evaluate the effectiveness of this section.

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 474.)

5 - 4 - 9 - 4 - 15 Reporting requirement

(1)

(2)

(3)

(4)

(5)

The number of scholarships awarded under section 9809 during the preceding fiscal year and the number of scholarship recipients appointed by theAdministration during the preceding fiscal year.

(6)

(7)

The average amount paid per appointee, and the largest amount paid to any appointee, under section 9811 during the preceding fiscal year for travel and transportation expenses.

(8)

(9)

(10)

(11)

(Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 475.)

5 - 4 - 9 - 5 DEPARTMENT OF DEFENSE PERSONNEL AUTHORITIES (§§ 9901 to 9904)

5 - 4 - 9 - 5 - 1 Definitions

For purposes of this chapter—

(1)

the term “Director” means the Director of the Office of Personnel Management; and

(2)

the term “Secretary” means the Secretary of Defense.

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1621.)

5 - 4 - 9 - 5 - 2 Department of Defense personnel authorities

(a)Performance Management and Workforce Incentives.—

(1)The Secretary, in coordination with the Director, shall promulgate regulations providing for the following:

(A)

A fair, credible, and transparent performance appraisal system for employees.

(B)

A fair, credible, and transparent system for linking employee bonuses and other performance-based actions to performance appraisals of employees.

(C)

A process for ensuring ongoing performance feedback and dialogue among supervisors, managers, and employees throughout the appraisal period and setting timetables for review.

(D)

Development of attractive career paths.

(E)

Development of “performance assistance plans” that are designed to give employees formal training, on-the-job training, counseling, mentoring, and other assistance.

(2)

(3)

(A)

The Secretary may establish a fund, to be known as the “Department of Defense Civilian Workforce Incentive Fund” (in this paragraph referred to as the “Fund”).

(B)The Fund shall consist of the following:

(i)

Amounts appropriated to the Fund.

(ii)

Amounts available for compensation of employees that are transferred to the Fund.

(C)Amounts in the Fund shall be available for the following:

(i)

Incentive payments for employees based on team or individual performance (which payments shall be in addition to basic pay).

(ii)

Incentive payments to attract or retain employees with particular or superior qualifications or abilities.

(D)

(4)

(A)

Any action taken by the Secretary under this subsection, or to implement this subsection, shall be subject to the requirements of subsection (c) and chapter 71.

(B)

(b)Flexibilities Relating to Appointments.—

(A)

better meet mission needs;

(B)

respond to managers’ needs and the needs of applicants;

(C)

produce high-quality applicants;

(D)

support timely decisions;

(E)

uphold appointments based on merit system principles; and

(F)

promote competitive job offers.

(A)

Fair, credible, and transparent methods of establishing qualification requirements for, recruitment for, and appointments to positions.

(B)

Fair and open competition and equitable treatment in the consideration and selection of individuals to positions.

(C)

Fair, credible, and transparent methods of assigning, reassigning, detailing, transferring, or promoting employees.

(3)

(4)

(A)

Any action taken by the Secretary under this subsection, or to implement this subsection, shall be subject to the requirements of subsection (c) and chapter 71.

(B)

(5)

The Secretary shall develop a training program for Department of Defense human resource professionals to implement the requirements of this subsection.

(6)

The Secretary shall develop indicators of effectiveness to determine whether appointment flexibilities under this subsection have achieved the objectives set forth in paragraph (1).

(1)

adhere to merit principles set forth in section 2301;

(2)

include a means for ensuring employee involvement (for bargaining unit employees, through their exclusive representatives) in the design and implementation of such system;

(3)

provide for adequate training and retraining for supervisors, managers, and employees in the implementation and operation of such system;

(4)develop—

(A)

a comprehensive management succession program to provide training to employees to develop managers for the agency; and

(B)

a program to provide training to supervisors on actions, options, and strategies a supervisor may use in administering such system;

(5)

(6)

provide mentors to advise individuals on their career paths and opportunities to advance and excel within their fields;

(7)

develop appropriate procedures for warnings during performance evaluations for employees who fail to meet performance standards;

(8)

utilize the annual strategic workforce plan, required by section 115b [1] of title 10; and

(9)

ensure that adequate agency resources are allocated for the design, implementation, and administration of such system.

(d)Development of Training Program for Supervisors.—

(1)The Secretary shall develop—

(A)a program to provide training to supervisors on use of the new authorities provided in this section, including the actions, options, and strategies a supervisor may use in—

(i)

developing and discussing relevant goals and objectives with the employee, communicating and discussing progress relative to performance goals and objectives, and conducting performance appraisals;

(ii)

mentoring and motivating employees, and improving employeeperformance and productivity;

(iii)

fostering a work environment characterized by fairness, respect, equal opportunity, and attention to the quality of the work of employees;

(iv)

effectively managing employees with unacceptable performance;

(v)

addressing reports of a hostile work environment, reprisal, or harassment of or by another supervisor or employee; and

(vi)

otherwise carrying out the duties and responsibilities of a supervisor;

(B)

(C)a program under which experienced supervisors mentor new supervisors by—

(i)

sharing knowledge and advice in areas such as communication, critical thinking, responsibility, flexibility, motivating employees, teamwork, leadership, and professional development; and

(ii)

pointing out strengths and areas for development.

(2)

Each supervisor shall be required to complete a program at least once every 3 years.

(e)Provisions Regarding National Level Bargaining.—

(1)

(2)Any such bargaining shall—

(A)address issues that are—

(i)

subject to bargaining under chapter 71 and this chapter;

(ii)

applicable to multiple bargaining units; and

(iii)

raised by either party to the bargaining;

(B)

(C)

(D)

(3)

(4)

The National Guard Bureau and the Army and Air Force National Guard may be included in coverage under this subsection.

(5)

(f)Provisions Related to Separation and Retirement Incentives.—

(1)

(2)

(A)

(B)

(C)

(A)

a reemployed annuitant under subchapter III of chapter 83 or chapter 84, or another retirement system for employees of the Federal Government;

(B)

an employee having a disability on the basis of which such employeeis or would be eligible for disability retirement under any of the retirement systems referred to in subparagraph (A); or

(C)

for purposes of eligibility for separation incentives under this section, an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance.

(4)

(5)

(A)Separation pay shall be paid in a lump sum or in installments and shall be equal to the lesser of—

(i)

an amount equal to the amount the employee would be entitled to receive under section 5595(c), if the employee were entitled to payment under such section; or

(ii)

$25,000.

(B)

(C)

(6)

(A)

(B)

(7)

(g)Provisions Relating to Reemployment.—

(1)

(2)

(A)

(B)An election for coverage under this paragraph shall be filed not later than the later of 90 days after the date the Department of Defense—

(i)

prescribes regulations to carry out this subsection; or

(ii)

takes reasonable actions to notify employees who may file an election.

(C)

(D)

Paragraph (1) shall apply to an individual who is eligible to file an election under subparagraph (A) and does not file a timely election under subparagraph (B).

(3)

(4)

The Secretary shall prescribe regulations to carry out this subsection, excluding paragraph (3).

(h)Reports.—

(A)

(B)

(2)Review.—After receiving any report under paragraph (1), the Comptroller General—

(A)

shall review the assessments or surveys described in such report to determine if they were appropriately designed and statistically valid;

(B)

(C)within 6 months after receiving such report, shall submit to the appropriate committees of Congress—

(i)

an independent evaluation of the results of the assessments or surveys reviewed under subparagraph (A), and

(ii)

the findings of the Comptroller General based on the review under subparagraph (B),

together with any recommendations the Comptroller General considers appropriate.

(3)Definition.—For purposes of this subsection, the term “appropriate committees of Congress” means—

(A)

the Committees on Armed Services of the Senate and the House of Representatives;

(B)

the Committee on Homeland Security and Governmental Affairs of the Senate; and

(C)

the Committee on Oversight and Government Reform of the House of Representatives.

5 - 4 - 9 - 5 - 3 Attracting highly qualified experts

(a)In General.—

The Secretary may carry out a program using the authority provided in subsection (b) in order to attract highly qualified experts in needed occupations, as determined by the Secretary.

(b)Authority.—Under the program, the Secretary may—

(1)

(2)

(3)

pay any employee appointed under paragraph (1) payments in addition to basic pay within the limits applicable to the employee under subsection (d).

(c)Limitation on Term of Appointment.—

(1)

Except as provided in paragraph (2), the service of an employee under an appointment made pursuant to this section may not exceed 5 years.

(2)

(d)Limitations on Additional Payments.—

(1)The total amount of the additional payments paid to an employee under this section for any 12-month period may not exceed the lesser of the following amounts:

(A)

(B)

The amount equal to 50 percent of the employee’s annual rate of basic pay.

For purposes of this paragraph, the term “base quarter” has the meaning given such term by section 5302(3).

(2)An employee appointed under this section is not eligible for any bonus, monetary award, or other monetary incentive for service, except for—

(A)

payments authorized under this section; and

(B)

in the case of an employee who is assigned in support of a contingency operation (as defined in section 101(a)(13) of title 10), allowances and any other payments authorized under chapter 59.

(3)

(e)Limitation on Number of Highly Qualified Experts.—

The number of highly qualified experts appointed and retained by the Secretaryunder subsection (b)(1) shall not exceed 2,500 at any time.

(1)the termination of the program does not terminate the employee’s employment in that position before the expiration of the lesser of—

(A)

the period for which the employee was appointed; or

(B)

the period to which the employee’s service is limited under subsection (c), including any extension made under this section before the termination of the program; and

(2)

the rate of basic pay prescribed for the position under this section may not be reduced as long as the employee continues to serve in the position without a break in service.

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1632; amended Pub. L. 112–81, div. A, title XI, § 1105, Dec. 31, 2011, 125 Stat. 1612.)

5 - 4 - 9 - 5 - 4 Special pay and benefits for certain employees outside the United States

(1)allowances and benefits—

(A)

(B)

comparable to those provided by the Director of Central Intelligence to personnel of the Central Intelligence Agency; and

(2)

(Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1633.)

Direct hire authority for certain personnel of the Department of Defense

(1)

Any position involved with Department maintenance activities, including depot-level maintenance and repair.

(2)

Any cyber workforce position.

(3)

Any individual in the acquisition workforce that manages any services contracts necessary to the operation and maintenance of programs of the Department.

(4)

(5)

(6)

(7)

Any category of medical or health professional positions within the Department designated by the Secretary as a shortage category or critical need occupation.

(8)

Any childcare services position for which there is a critical hiring need and a shortage of childcare providers.

(9)

(10)

Any position, as determined by the Secretary, for the purpose of assisting and facilitating the efforts of the Department in business transformation and management innovation.

(11)

Any position in the military housing office of a military installation whose primary function is supervision of military housing covered by subchapter IV of chapter 169 of title 10.

(b)Sunset.—

(1)In general.—

Except as provided in paragraph (2), effective on September 30, 2025, the authority provided under subsection (a) shall expire.

(2)Exception.—

Paragraph (1) shall not apply to the authority provided under subsection (a) to make appointments to positions described under paragraph (5) of such subsection.

(1)

Sections 1599c(a)(2) and 1705(h) of title 10.

(2)

Sections 1112 and 1113 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 1033).

(3)

Sections 1110 and 1643(a)(3) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat. 2450 and 2602).

(4)

Sections 559 and 1101 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115–91; 131 Stat. 1406 and 1627).

5 - 4 - 9 - 6 FEDERAL EMERGENCY MANAGEMENT AGENCY PERSONNEL (§§ 10101 to 10106)

5 - 4 - 9 - 6 - 1 Definitions

For purposes of this chapter—

(1)

the term “Agency” means the Federal Emergency Management Agency;

(2)

the term “Administrator” means the Administrator of the Federal Emergency Management Agency;

(3)

the term “appropriate committees of Congress” has the meaning given the term in section 602 of the Post-Katrina Emergency Management Reform Act of 2006;

(4)

the term “Department” means the Department of Homeland Security; and

(5)

the term “Surge Capacity Force” refers to the Surge Capacity Force, described under section 624 of the Post-Katrina Emergency Management Reform Act of 2006.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1411.)

5 - 4 - 9 - 6 - 2 Strategic human capital plan

(a)Plan Development.—

(b)Contents.—The strategic human capital plan shall include—

(1)a workforce gap analysis, including an assessment of—

(A)

(B)

(C)

(2)a plan of action for developing and reshaping the workforce of the Agencyto address the gaps in critical skills and competencies identified under paragraph (1)(C), including—

(A)

(B)

(C)

specific strategies for recruiting individuals who have served in multiple State agencies with emergency management responsibilities; and

(D)

specific strategies for the development, training, and coordinated and rapid deployment of the Surge Capacity Force; and

(3)a discussion that—

(A)

details the number of employees of the Department not employed by the Agency serving in the Surge Capacity Force and the qualifications or credentials of such individuals;

(B)

details the number of individuals not employed by the Departmentserving in the Surge Capacity Force and the qualifications or credentials of such individuals;

(C)

describes the training given to the Surge Capacity Force during the calendar year preceding the year of submission of the plan under subsection (c);

(D)

(E)

describes any additional authorities or resources necessary to address any deficiencies in the Surge Capacity Force.

(c)Annual Updates.—

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1412.)

5 - 4 - 9 - 6 - 3 Career paths

(a)In General.—The Administrator shall—

(1)

ensure that appropriate career paths for personnel of the Agency are identified, including the education, training, experience, and assignments necessary for career progression within the Agency; and

(2)

publish information on the career paths described in paragraph (1).

(b)Education, Training, and Experience.—

(c)Policy.—The Administrator shall establish a policy for assigning Agency personnel to positions that provides for a balance between—

(1)

the need for such personnel to serve in career enhancing positions; and

(2)the need to require service in a position for a sufficient period of time to provide the stability necessary—

(A)

to carry out the duties of that position; and

(B)

for responsibility and accountability for actions taken in that position.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1413.)

5 - 4 - 9 - 6 - 4 Recruitment bonuses

(a)In General.—

(b)Bonus Amount.—

(1)In general.—

The amount of a bonus under this section shall be determined by the Administrator, but may not exceed 25 percent of the annual rate of basic pay of the position involved.

(2)Form of payment.—

A bonus under this section shall be paid in the form of a lump-sum payment and shall not be considered to be part of basic pay.

(c)Service Agreements.—Payment of a bonus under this section shall be contingent upon the employee entering into a written service agreement with the Agency. The agreement shall include—

(1)

the period of service the individual shall be required to complete in return for the bonus; and

(2)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(d)Eligibility.—A bonus under this section may not be paid to an individual who is appointed to or holds—

(1)

a position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(2)

a position in the Senior Executive Service as a noncareer appointee (as defined in section 3132(a)); or

(3)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.

(e)Termination.—

The authority to pay bonuses under this section shall terminate 5 years after the date of enactment of this chapter.

(f)Reports.—

(1)In general.—

The Agency shall submit to the appropriate committees of Congress, annually for each of the 5 years during which this section is in effect, a report on the operation of this section.

(A)

the number and dollar amount of bonuses paid to individuals holding positions within each pay grade, pay level, or other pay classification; and

(B)

a determination of the extent to which such bonuses furthered the purposes of this section.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1414.)

5 - 4 - 9 - 6 - 5 Retention bonuses

(a)Authority.—The Administrator may pay, on a case-by-case basis, a bonus under this section to an employee of the Agency if—

(1)

the unusually high or unique qualifications of the employee or a special need of the Agency for the employee’s services makes it essential to retain the employee; and

(2)the Administrator determines that, in the absence of such a bonus, the employee would be likely to leave—

(A)

the Federal service; or

(B)

for a different position in the Federal service.

(1)

the period of service the individual shall be required to complete in return for the bonus; and

(2)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed, and the effect of the termination.

(c)Bonus Amount.—

(1)In general.—

The amount of a bonus under this section shall be determined by the Administrator, but may not exceed 25 percent of the annual rate of basic pay of the position involved.

(2)Form of payment.—

A bonus under this section shall be paid in the form of a lump-sum payment and shall not be considered to be part of basic pay.

(d)Limitation.—A bonus under this section—

(1)

may not be based on any period of service which is the basis for a recruitment bonus under section 10104;

(2)may not be paid to an individual who is appointed to or holds—

(A)

a position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(B)

a position in the Senior Executive Service as a noncareer appointee (as defined in section 3132(a)); or

(C)

a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character; and

(3)

upon completion of the strategic human capital plan, shall be paid in accordance with that plan.

(e)Termination of Authority.—

The authority to grant bonuses under this section shall expire 5 years after the date of enactment of this chapter.

(f)Reports.—

(1)In general.—

(A)

the number and dollar amount of bonuses paid to individuals holding positions within each pay grade, pay level, or other pay classification; and

(B)

a determination of the extent to which such bonuses furthered the purposes of this section.

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1414.)

5 - 4 - 9 - 6 - 6 Quarterly report on vacancy rate in employee positions

(a)Initial Report.—

(1)In general.—

(2)Contents.—The report under this subsection shall include—

(A)

vacancies of each category of employee position;

(B)

the number of applicants for each vacancy for which public notice has been given;

(C)

the length of time that each vacancy has been pending;

(D)

hiring-cycle time for each vacancy that has been filled; and

(E)

a plan for reducing the hiring-cycle time and reducing the current and anticipated vacancies with highly-qualified personnel.

(b)Quarterly Updates.—

(Added Pub. L. 109–295, title VI, § 621(a), Oct. 4, 2006, 120 Stat. 1416.)

5 - 4 - 9 - 7 UNITED STATES SECRET SERVICE UNIFORMED DIVISION PERSONNEL (§§ 10201 to 10210)

5 - 4 - 9 - 7 - 1 Definitions

In this chapter—

(1)

the term “member” means an employee of the United States Secret ServiceUniformed Division having the authorities described under section 3056A(b) of title 18;

(2)

the term “Secretary” means the Secretary of the Department of Homeland Security; and

(3)

the term “United States Secret Service Uniformed Division” has the meaning given that term under section 3056A of title 18.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3033.)

5 - 4 - 9 - 7 - 2 Authorities

(a)In General.—The Secretary is authorized to—

(1)

fix and adjust rates of basic pay for members of the United States Secret Service Uniformed Division, subject to the requirements of this chapter;

(2)

determine what constitutes an acceptable level of competence for the purposes of section 10205;

(3)

establish and determine the positions at the Officer and Sergeant ranks to be included as technician positions; and

(4)

determine the rate of basic pay of a member who is changed or demoted to a lower rank, in accordance with section 10208.

(b)Delegation of Authority.—

The Secretary is authorized to delegate to the designated agent or agents of the Secretary, any power or function vested in the Secretary under in [1] this chapter.

(c)Regulations.—

The Secretary may prescribe such regulations as may be necessary to administer this chapter.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3034.)

5 - 4 - 9 - 7 - 3 Basic pay

(a)In General.—

Rank	Step 1	Step 2	Step 3	Step 4	Step 5	Step 6	Step 7	Step 8	Step 9	Step 10	Step 11	Step 12	Step 13
1 So in original. Probably should be followed by “for”.
Officer	$44,000	$46,640	$49,280	$51,920	$54,560	$57,200	$59,840	$62,480	$65,120	$67,760	$70,400	$73,040	$75,680
Sergeant	..........	..........	..........	59,708	62,744	65,780	68,816	71,852	74,888	77,924	80,960	83,996	87,032
Lieutenant	..........	..........	..........	..........	69,018	72,358	75,698	79,038	82,378	85,718	89,058	92,398	95,738
Captain	..........	..........	..........	..........	..........	79,594	83,268	86,942	90,616	94,290	97,964	101,638	105,312
Inspector	..........	..........	..........	..........	..........	91,533	95,758	99,983	104,208	108,433	112,658	116,883	121,108
Deputy Chief	The rate of basic pay for Deputy Chief positions will be equal to 95 percent of the rate of pay for level V of the Executive Schedule.
Assistant Chief	The rate of basic pay 1 the Assistant Chief position will be equal to 95 percent of the rate of pay for level V of the Executive Schedule.
Chief	The rate of basic pay 1 the Chief position will be equal to the rate of pay for level V of the Executive Schedule.

(b)Schedule Adjustment.—

(1)

(A)

(B)The Secretary may establish a methodology of schedule adjustment that—

(i)

results in uniform fixed-dollar step increments within any given rank; and

(ii)

preserves the established percentage differences among rates of different ranks at the same step position.

(2)

(3)

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3034.)

5 - 4 - 9 - 7 - 4 Rate of pay for original appointments

(a)In General.—

Except as provided in subsection (b), all original appointments shall be made at the minimum rate of basic pay for the Officer rank set forth in the schedule in section 10203.

(b)Exception for Superior Qualifications or Special Need.—

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3036.)

5 - 4 - 9 - 7 - 5 Service step adjustments

(a)Definition.—

(b)Adjustments.—Each member whose current performance is at an acceptable level of competence shall have a service step adjustment as follows:

(1)

(2)

(3)

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3036.)

5 - 4 - 9 - 7 - 6 Technician positions

(a)In General.—

(1)

(2)

(3)

The additional compensation authorized by this subsection shall be paid to a member in the same manner and at the same time as the member’s basic pay is paid.

(b)Exceptions.—

(1)

Except as provided in paragraph (2), the additional compensation authorized by subsection (a)(1) shall be considered as basic pay for all purposes, including section 8401(4).

(2)The additional compensation authorized by subsection (a)(1) shall not be considered as basic pay for the purposes of—

(A)

section 5304; or

(B)

section 7511(a)(4).

(3)

The loss of the additional compensation authorized by subsection (a)(1) shall not constitute an adverse action for the purposes of section 7512.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 7 Promotions

(a)In General.—

Each member who is promoted to a higher rank shall receive basic pay at the same step at which such member was being compensated prior to the date of the promotion.

(b)Credit for Service.—

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 8 Demotions

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 9 Clothing allowances

(a)In General.—

(b)Maximum Amount Authorized.—

A clothing allowance authorized under this section shall not exceed $500 per annum.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3037.)

5 - 4 - 9 - 7 - 10 Reporting requirement

Not later than 3 years after the date of the enactment of this chapter, the Secretary shall prepare and transmit to Congress a report on the operation of this chapter. The report shall include—

(1)

an assessment of the effectiveness of this chapter with respect to efforts of the Secretary to recruit and retain well-qualified personnel; and

(2)

recommendations for any legislation or administrative action which the Secretary considers appropriate.

(Added Pub. L. 111–282, § 2(a), Oct. 15, 2010, 124 Stat. 3038.)

5 - 4 - 10 Enhanced Personnel Security Programs (§ 11001)

(a)Enhanced Personnel Security Program.—The Director of National Intelligence shall direct each agency to implement a program to provide enhanced security review of covered individuals—

(1)

in accordance with this section; and

(2)not later than the earlier of—

(A)

the date that is 5 years after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2016; or

(B)

the date on which the backlog of overdue periodic reinvestigations of covered individuals is eliminated, as determined by the Director of National Intelligence.

(b)Comprehensiveness.—

(1)Sources of information.—

The enhanced personnel security program of an agency shall integrate relevant and appropriate information from various sources, including government, publicly available, and commercial data sources, consumer reporting agencies, social media, and such other sources as determined by the Director of National Intelligence.

(2)Types of information.—Information obtained and integrated from sources described in paragraph (1) may include—

(A)

information relating to any criminal or civil legal proceeding;

(B)

financial information relating to the covered individual, including the credit worthiness of the covered individual;

(C)

publicly available information, whether electronic, printed, or other form, including relevant security or counterintelligence information about the covered individual or information that may suggest ill intent, vulnerability to blackmail, compulsive behavior, allegiance to another country, change in ideology, or that the covered individual lacks good judgment, reliability, or trustworthiness; and

(D)

data maintained on any terrorist or criminal watch list maintained by any agency, State or local government, or international organization.

(c)Reviews of Covered Individuals.—

(1)Reviews.—

(A)In general.—

The enhanced personnel security program of an agency shall require that, not less than 2 times every 5 years, the head of the agency shall conduct or request the conduct of automated record checks and checks of information from sources under subsection (b) to ensure the continued eligibility of each covered individual to access classified information and hold a sensitive position unless more frequent reviews of automated record checks and checks of information from sources under subsection (b) are conducted on the covered individual.

(B)Scope of reviews.—

Except for a covered individual who is subject to more frequent reviews to ensure the continued eligibility of the covered individual to access classified information and hold a sensitive position, the reviews under subparagraph (A) shall consist of random or aperiodic checks of covered individuals, such that each covered individual is subject to at least 2 reviews during the 5-year period beginning on the date on which theagency implements the enhanced personnel security program of anagency, and during each 5-year period thereafter.

(C)Individual reviews.—

A review of the information relating to the continued eligibility of a covered individual to access classified information and hold a sensitive position under subparagraph (A) may not be conducted until after the end of the 120-day period beginning on the date the covered individualreceives the notification required under paragraph (3).

(2)Results.—

The head of an agency shall take appropriate action if a review under paragraph (1) finds relevant information that may affect the continued eligibility of a covered individual to access classified information and hold a sensitive position.

(3)Information for covered individuals.—

The head of an agency shall ensure that each covered individual is adequately advised of the types of relevant security or counterintelligence information the covered individual is required to report to the head of theagency.

(4)Limitation.—

Nothing in this subsection shall be construed to affect the authority of an agency to determine the appropriate weight to be given to information relating to a covered individual in evaluating the continued eligibility of the covered individual.

(5)Authority of the president.—

Nothing in this subsection shall be construed as limiting the authority of the President to direct or perpetuate periodic reinvestigations of a more comprehensive nature or to delegate the authority to direct or perpetuate such reinvestigations.

(6)Effect on other reviews.—

Reviews conducted under paragraph (1) are in addition to investigations and reinvestigations conducted pursuant to section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341).

(d)Review.—

(1)In general.—

Beginning 2 years after the date of the implementation of the enhanced personnel security program of an agency under subsection (a), the Inspector General of the agency shall conduct at least 1 review to assess the effectiveness and fairness, which shall be determined in accordance with performance measures and standards established by the Director of National Intelligence, to covered individuals of the enhanced personnel security program of the agency.

(2)Submissions to dni.—

The results of each review conducted under paragraph (1) shall be submitted to the Director of National Intelligence to assess the effectiveness and fairness of the enhanced personnel security programs across the Federal Government.

(e)Definitions.—In this section—

(1)

the term “agency” has the meaning given that term in section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341);

(2)

the term “consumer reporting agency” has the meaning given that term in section 603 of the Fair Credit Reporting Act (15 U.S.C. 1681a);

(3)

the term “covered individual” means an individual employed by an agency or a contractor of an agency who has been determined eligible for access to classified information or eligible to hold a sensitive position; [1]

(4)

the term “enhanced personnel security program” means a program implemented by an agency at the direction of the Director of National Intelligence under subsection (a); and [2]

(Added Pub. L. 114–113, div. M, title III, § 306(a)(1), Dec. 18, 2015, 129 Stat. 2914; amended Pub. L. 116–92, div. E, title LXVII, § 6711, Dec. 20, 2019, 133 Stat. 2225.)