[Federal Register Volume 62, Number 127 (Wednesday, July 2, 1997)]
[Proposed Rules]
[Pages 35693-35696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17231]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 62, No. 127 / Wednesday, July 2, 1997 / 
Proposed Rules  

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 880

RIN 3206-AH75


Retirement and Insurance Benefits When an Annuitant Is Missing

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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

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

ADDRESSES: Send comments to John E. Landers, Chief, Retirement Policy 
Division; Retirement and Insurance Service; Office of Personnel 
Management; P.O. Box 57; Washington, DC 20044; or deliver to OPM, Room 
4351, 1900 E Street NW., Washington, DC.

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

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

[[Page 35694]]

annuitant were dead. In the usual missing annuitant case, the effect of 
this rule is that the spouse will be paid at the survivor rate--55 
percent (CSRS) or 50 percent (FERS) of the missing annuitant's benefit. 
However, if the missing annuitant had children who would be eligible 
for a survivor annuity, we would make payments at the child annuity 
rate as well. Also, if a former spouse has been receiving a portion of 
the annuitant's monthly benefit in accordance with a court order, that 
payment to the former spouse would be suspended under rules that would 
normally apply when an annuitant's payments are suspended. See 5 CFR 
838.323. If a former spouse would be entitled to the survivor annuity, 
upon the missing annuitant's death, we will pay the former spouse an 
amount equal to that survivor annuity.
    Section 880.303 establishes that family health benefits coverage 
continues while the annuitant is missing if there is more than one 
eligible family member, and that the enrollment is transferred to an 
eligible family member. If there is only one eligible family member, 
the enrollment is changed to self only and transferred to that family 
member. If the missing annuitant has a self-only enrollment, the 
enrollment terminates. If the missing annuitant is later found to be 
alive, the original enrollment is reinstated upon the annuitant's 
reappearance unless the annuitant or his or her representative requests 
that it be restored retroactively to the time of the disappearance.
    Section 880.304 establishes that life insurance premiums will not 
be collected while the annuitant is missing. If the annuitant is 
located, back premiums will be collected. If not, the suspension of 
premiums will be permanent because the annuitant is deemed to have died 
on the date of disappearance.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the regulation 
will only affect retirement and insurance benefits of retired 
Government employees and their survivors.

List of Subjects in 5 CFR Part 880

    Administrative practice and procedure, Government employees, Health 
insurance, Hostages, Life insurance, Pensions, Retirement.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, OPM proposes to amend 5 CFR as follows:
    1. Part 880 is added to read as follows:

PART 880--RETIREMENT AND INSURANCE BENEFITS DURING PERIODS OF 
UNEXPLAINED ABSENCE

Subpart A--General

Sec.
880.101  Purpose and scope.
880.102  Regulatory structure.
880.103  Definitions.

Subpart B--Procedures

880.201  Purpose and scope.
880.202  Referral to Associate Director.
880.203  Missing annuitant status and suspension of annuity.
880.204  Restoration of annuity.
880.205  Determinations of death.
880.206  Date of death.
880.207  Adjustment of accounts after finding of death.

Subpart C--Continuation of Benefits

880.301  Purpose.
880.302  Payments of CSRS or FERS benefits.
880.303  FEHBP coverage.
880.304  FEGLI coverage.

    Authority: 5 U.S.C. 8347(a), 8461(g), 8716, 8913.

Subpart A--General


Sec. 880.101  Purpose and scope.

    (a) The purpose of this part is to establish a uniform standard 
that OPM will use in its administration of benefits for CSRS, FERS, 
FEHBP and FEGLI in cases in which an annuitant becomes a missing 
annuitant.
    (b) This part establishes the procedures that OPM will follow to--
    (1) Determine--
    (i) Who is a missing annuitant,
    (ii) When a missing annuitant has died,
    (iii) When benefits will be paid in missing annuitant cases, and
    (iv) FEHBP coverage for family members of a missing annuitant; and
    (2) Make adjustments to CSRS and FERS benefit payments, FEHBP 
coverage and premiums, and FEGLI benefit payments and premiums after a 
determination that a missing annuitant is dead.
    (c) This part applies only to situations in which an individual who 
satisfies the statutory definition of an annuitant under section 
8331(9) or section 8401(2) of title 5, United States Code, disappears 
and has not been determined to be dead by an authorized institution. 
This part does not apply to--
    (1) An employee, regardless of whether the absence is covered by 
subchapter VII of chapter 55 of title 5, United States Code; or
    (2) A separated employee who either--
    (i) Does not meet the age and service requirements for an annuity, 
or
    (ii) Has not filed an application for annuity.


Sec. 880.102  Regulatory structure.

    (a) This part contains the following subparts:
    (1) Subpart A contains general information about this part and 
related subjects.
    (2) Subpart B establishes the procedures that OPM will follow in 
missing annuitant cases.
    (3) Subpart C establishes the methodologies that OPM will apply in 
determining continuations of coverage and amounts of payments in 
missing annuitant cases.
    (b) Part 831 of this chapter contains information about benefits 
under CSRS.
    (c) Part 838 of this chapter contains information about benefits 
available to former spouses under court orders.
    (d) Parts 841 through 844 of this chapter contain information about 
benefits under FERS.
    (e) Parts 870 through 873 of this chapter contain information about 
benefits under FEGLI.
    (f) Part 890 of this chapter contains information about benefits 
under FEHBP.
    (g) Part 1200 of this title contains information about Merit 
Systems Protection Board review of OPM decisions affecting interests in 
CSRS or FERS benefits.
    (h) Part 1600 of this title contains information about benefits 
under the Thrift Savings Plan.


Sec. 880.103  Definitions.

    For purposes of this part--
    Annuitant means an individual who has separated from the Federal 
service with, and has retained, title to a CSRS or FERS annuity, has 
satisfied the age and service requirements for commencement of that 
annuity, and has filed an application for that annuity.
    Associate Director means OPM's Associate Director for Retirement 
and Insurance or his or her designee; Authorized institution means a 
government organization or official legally charged with making 
determinations of death in the State or country of the missing 
annuitant's domicile, citizenship, or disappearance;
    CSRS means the Civil Service Retirement System established in 
subchapter III of chapter 83 of title 5, United States Code;

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    FEGLI means the Federal Employees Group Life Insurance program 
established in chapter 87 of title 5, United States Code;
    FEHBP means the Federal Employees Health Benefits Program 
established in chapter 89 of title 5, United States Code;
    FERS means the basic benefit portion of the Federal Employees 
Retirement System established in subchapters I, II, IV, V, and VI of 
chapter 84 of title 5, United States Code; FERS does not include 
benefits under the Thrift Savings Plan established under subchapters 
III and VII of chapter 84 of title 5, United States Code;
    Missing annuitant means: an individual who has acquired the status 
of missing annuitant under Sec. 880.203(b).

Subpart B--Procedures


Sec. 880.201  Purpose and scope.

    This subpart establishes the procedures that OPM will use to--
    (a) Determine that an individual is a missing annuitant;
    (b) Suspend payment of annuity to a missing annuitant;
    (c) Notify individuals affected by such a suspension of payments; 
and
    (d) Determine that a missing annuitant has died.


Sec. 880.202  Referral to Associate Director.

    Any OPM office that receives information concerning the possibility 
that an annuitant might have disappeared will notify the Associate 
Director.


Sec. 880.203  Missing annuitant status and suspension of annuity.

    (a) Upon receipt of information concerning the possibility that an 
annuitant has disappeared, the Associate Director will conduct such 
inquiry as he or she determines to be necessary to determine whether 
the annuitant is alive and whether the annuitant's whereabouts can be 
determined.
    (b) If during an inquiry under paragraph (a) of this section, or 
upon subsequent receipt of additional information, the Associate 
Director finds substantial evidence (as defined in Sec. 1201.56(c)(1) 
of this title) to believe that an annuitant is either not alive or that 
the annuitant's whereabouts cannot be determined, the annuitant 
acquires the status of missing annuitant. The Associate Director will 
then--
    (1) Suspend payments to the missing annuitant; and
    (2) Notify individuals who may be able to qualify for payments 
under Sec. 880.302 that--
    (i) OPM has suspended the annuity payments to the missing 
annuitant;
    (ii) Payment may be made under Sec. 880.302, including the amount 
available for payment, how that amount was determined, and the 
documentation required (if any) to qualify for such payments; and
    (iii) In response to an inquiry from any person seeking CSRS, FERS, 
FEHBP, or FEGLI benefits, OPM will provide information about 
documentation necessary to establish a claim for such benefits.


Sec. 880.204  Restoration of annuity.

    (a) If the missing annuitant's whereabouts are determined, and he 
or she is alive and--
    (1) Competent, OPM will resume payments to the annuitant and pay 
retroactive annuity for the period in missing status less any payment 
made to the family during that period; or
    (2) Incompetent, OPM will resume payments to a representative payee 
under section 8345(e) or section 8466(c) of title 5, United States 
Code, and pay retroactive annuity for the period in missing status less 
any payment made to the family during that period.
    (b) If the missing annuitant's whereabouts cannot be determined, 
missing annuitant status continues until an authorized institution 
determines that the missing annuitant is dead. (See Sec. 880.205).


Sec. 880.205  Determinations of death.

    OPM does not make findings of presumed death. A claimant for CSRS, 
FERS, or FEGLI death benefits (other than payments under Sec. 880.302) 
or an individual seeking an adjustment of accounts under Sec. 880.207 
must submit a death certificate or other legal certification of death 
issued by an authorized institution.


Sec. 880.206  Date of death.

    (a) Except as provided in paragraph (b) of this section, for the 
purpose of benefits administered by OPM, the date of death of a missing 
annuitant who has been determined to be dead by an authorized 
institution is the date of disappearance as determined by the Associate 
Director.
    (b) For the purpose of determining whether a claim is untimely 
under any statute of limitations applicable to CSRS, FERS or FEGLI 
benefits (section 8345(i)(2), section 8466(b), or section 8705(b) 
through (d) of title 5, United States Code), the time between the date 
of disappearance and the date on which the authorized institution 
issues its decision that the missing annuitant is dead is excluded.


Sec. 880.207  Adjustment of accounts after finding of death.

    After a missing annuitant is determined to be dead under 
Sec. 880.205, OPM will review the case to determine whether additional 
benefits are payable or excess insurance premiums have been withheld.

Subpart C--Continuation of Benefits


Sec. 880.301  Purpose.

    This subpart establishes OPM's policy concerning the availability 
and amount of CSRS and FERS annuity payments and the continuation of 
FEHBP and FEGLI coverage and premiums while an annuitant is classified 
as a missing annuitant.


Sec. 880.302  Payments of CSRS or FERS benefits.

    (a) OPM will pay an amount equal to the survivor annuity that would 
be payable as CSRS or FERS survivor annuity to an account in a 
financial institution designated (under electronic funds transfer 
regulations in part 209 or part 210 of Title 31, Code of Federal 
Regulations) by an individual who, if the missing annuitant were dead, 
would be entitled to receive payment of a survivor annuity.
    (b) If more than one individual would qualify for survivor annuity 
payments in the event of the missing annuitant's death, OPM will make 
separate payments in the same manner as if the missing annuitant were 
dead.


Sec. 880.303  FEHBP coverage.

    (a) If the missing annuitant had a family enrollment, the 
enrollment will be transferred to the eligible family members under 
Sec. 890.303(c) of this chapter. If there is only one eligible family 
member, the enrollment will be changed to a self-only enrollment under 
Sec. 890.301(p) of this chapter. The changes will be effective the 
first day of the pay period following the date of disappearance.
    (b) If the missing annuitant was covered by a self only enrollment 
or if there is no eligible family member remaining, the enrollment 
terminates at midnight of the last day of the pay period in which he or 
she disappeared, subject to the temporary extension of coverage for 
conversion.
    (c) If the missing annuitant is found to be alive, the coverage 
held before the disappearance is reinstated effective with the pay 
period during which the annuitant is found, unless the annuitant, or 
the annuitant's representative, requests that the enrollment be 
restored retroactively to the pay period in which the disappearance 
occurred.

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Sec. 880.304  FEGLI coverage.

    (a) FEGLI premiums will not be collected during periods when an 
annuitant is a missing annuitant.
    (b)(1) If the annuity of a missing annuitant is restored under 
Sec. 880.204(a), OPM will deduct the amount of FEGLI premiums 
attributable to the period when the annuitant was a missing annuitant 
from any adjustment payment due the annuitant under Sec. 880.204(a).
    (2) If a missing annuitant is determined to be dead under 
Sec. 880.205, FEGLI premiums and benefits will be computed using the 
date of death established under Sec. 880.206(a).

[FR Doc. 97-17231 Filed 7-1-97; 8:45 am]
BILLING CODE 6325-01-P