22 U.S.C. § 4055 — Lump-sum payments

Page 1496 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4055 (i) if an annuity reduction or salary allot- ment under subparagraph (A) is in effect for that spouse or former spouse, the annuity shall be recomputed and paid as if it had not been reduced or the salary allotment termi- nated, as the case may be, and (ii) any amount accruing to the Fund under subparagraph (A) shall be refunded, but only to the extent that such amount may have ex- ceeded the actuarial cost of providing benefits under this subsection for the period such bene- fits were provided, as determined under regu- lations prescribed by the Secretary of State. (D) Under regulations prescribed by the Sec- retary of State, an annuity shall be recomputed (or salary allotment terminated or adjusted), and a refund provided (if appropriate), in a man- ner comparable to that provided under subpara- graph (C), in order to reflect a termination or reduction of future benefits under this sub- section for a spouse in the event a former spouse of the participant dies or remarries before at- taining age 60 and an increased annuity is pro- vided for that spouse in accordance with this part. (4) An annuity payable under this subsection to a spouse or former spouse shall commence on the day after the participant dies and shall ter- minate on the last day of the month before the former spouse’s death or remarriage before at- taining age 60. (5) Section 4066 of this title shall not apply to any annuity under this subsection, unless au- thorized under regulations prescribed by the Secretary of State. (Pub. L. 96–465, title I, § 814, Oct. 17, 1980, 94 Stat. 2113; Pub. L. 97–241, title I, § 125(2), Aug. 24, 1982, 96 Stat. 282; Pub. L. 99–335, title IV, §§ 402(a)(2), (3), 404(b), June 6, 1986, 100 Stat. 609, 610; Pub. L. 100–238, title II, § 217(a), (b), (c)(2), Jan. 8, 1988, 101 Stat. 1775.) Editorial Notes AMENDMENTS 1988—Subsec. (a)(1). Pub. L. 100–238, § 217(a), which di- rected the amendment of par. (1) by inserting ‘‘if such former spouse was married to the participant for at least 10 years during service of the participant which is creditable under this subchapter with at least 5 of such years occurring while the participant was a member of the Foreign Service and’’ after ‘‘annuity’’, was exe- cuted by inserting the new language after ‘‘annuity’’ in introductory provisions, as the probable intent of Con- gress. Subsec. (a)(4). Pub. L. 100–238, § 217(b), substituted ‘‘24’’ for ‘‘12’’. Subsec. (d). Pub. L. 100–238, § 217(c)(2), struck out sub- sec. (d) which read as follows: ‘‘Section 4046(l) of this title shall not apply— ‘‘(1) to any annuity payable under subsection (a) or (b) of this section to any former spouse if the amount of that annuity varies by reason of a spousal agree- ment or court order under section 4060(b)(1) of this title, or an election under section 4046(b)(1)(B) of this title, from the amount which would be calculated under subsection (a)(1) or (b)(1) of this section, as the case may be, in the absence of such spousal agree- ment, court order, or election; and ‘‘(2) to any annuity payable under subsection (c) of this section.’’ 1986—Subsec. (a)(1). Pub. L. 99–335, § 404(b)(1), inserted provision defining ‘‘creditable service’’ as service cred- itable under part I or II of this subchapter. Subsec. (a)(3), (5)(A), (6)(A). Pub. L. 99–335, § 402(a)(2), substituted ‘‘part’’ for ‘‘subchapter’’. Subsec. (b)(1). Pub. L. 99–335, § 404(b)(2), inserted pro- vision defining ‘‘creditable service’’ as service cred- itable under part I or II of this subchapter. Subsec. (b)(3). Pub. L. 99–335, § 402(a)(3), inserted ‘‘under this part’’ after ‘‘payable from the Fund’’. Subsec. (c)(3)(D). Pub. L. 99–335, § 402(a)(2), substituted ‘‘part’’ for ‘‘subchapter’’. 1982—Subsec. (a)(3). Pub. L. 97–241 substituted ‘‘or the first’’ for ‘‘on the first’’ in provision preceding subpar. (A). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–238, title II, § 261, Jan. 8, 1988, 101 Stat. 1776, provided that: ‘‘(a) IN GENERAL.—Except as provided in subsection (b), this title and the amendments made by this title [enacting sections 4069–1 to 4069c–1 of this title, amend- ing this section and sections 4044 to 4046, 4048, 4049, 4051, 4055, 4066, 4071a, 4071c, and 4084 of this title, and enact- ing provisions set out as a note under section 4046 of this title] shall take effect 90 days after the date of en- actment of this title [Jan. 8, 1988]. ‘‘(b) EXCEPTIONS.— ‘‘(1) The amendments made by section 202 [enacting section 4069–1 of this title] shall apply to any indi- vidual who, on or after the date of enactment of this title [Jan. 8, 1988], is married to a participant or former participant. ‘‘(2) The amendment made by section 217(a) [amend- ing this section] shall not apply with respect to the former spouse of a participant or former participant who is subject to subchapter I of chapter 8 of the For- eign Service Act of 1980 [this part] if, on the date of enactment of this title [Jan. 8, 1988], that former spouse— ‘‘(A) was the spouse of that participant or former participant; or ‘‘(B) is entitled to an annuity under section 814 of the Foreign Service Act of 1980 [this section] pursu- ant to the divorce or annulment of the marriage to that participant or former participant. ‘‘(c) DEFINITIONS.—For the purpose of this section, the terms ‘participant’ and ‘former participant’ have the same meaning as such terms in chapter 8 of the Foreign Service Act of 1980 [this subchapter].’’ EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effec- tive Date note under section 8401 of Title 5, Govern- ment Organization and Employees. § 4055. Lump-sum payments (a) Requirements for payment (1) A participant is entitled to be paid a lump- sum credit if the participant— (A) is separated from the Service for at least 31 consecutive days, or is transferred to a posi- tion in which the participant is not subject to this subchapter and remains in such a position for at least 31 consecutive days; (B) files an application with the Secretary of State for payment of the lump-sum credit; (C) is not reemployed in a position in which the participant is subject to this subchapter at the time the participant files the application; (D) will not become eligible to receive an an- nuity under this part within 31 days after fil- ing the application; and (E) has notified any spouse or former spouse the participant may have of the application for payment in accordance with regulations prescribed by the Secretary of State. Page 1497 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4055 1 See Amendment of Section note below. Such regulations may provide for waiver of sub- paragraph (E) under circumstances described in section 4046(b)(1)(D) of this title. (2) Such lump-sum credit shall be paid to the participant and to any former spouse of the par- ticipant in accordance with subsection (i). (b) Recall service; return of contributions Whenever an annuitant becomes separated from the Service following a period of recall service without becoming eligible for a supple- mental or recomputed annuity under section 4063 of this title, the compulsory contributions of the annuitant to the Fund for such service, together with any special contributions the an- nuitant may have made for other service per- formed after the date of separation from the Service which forms the basis for annuity, shall be returned to the annuitant (and any former spouse of the annuitant who was married to the participant during the period of recall service, in accordance with subsection (i)). (c) Difference between annuity and lump-sum credit If all annuity rights under this part based on the service of a deceased participant or annu- itant terminate before the total annuity paid equals the lump-sum credit to which the partici- pant or annuitant is entitled, the difference shall be paid in accordance with subsection (f). (d) Lack of eligible survivors If a participant or former participant dies and is not survived by an individual eligible for an annuity under this part or by such an individual or individuals all of whose annuity rights termi- nate before a claim for survivor annuity is filed, the lump-sum credit to which the participant or annuitant is entitled shall be paid in accordance with subsection (f). (e) Death of annuitant who was former partici- pant If an annuitant who was a former participant dies, any annuity accrued and unpaid shall be paid in accordance with subsection (f). (f) Order of precedence for payments Payments under subsections (c) through (e) shall be paid in the following order of prece- dence to individuals surviving the participant and alive on the date entitlement to the pay- ment arises, upon the establishment of a valid claim therefor, and such payment shall be a bar to recovery by any other person: (1) To the beneficiary or beneficiaries last designated by the participant before or after retirement in a signed and witnessed writing filed with the Secretary of State prior to the death of the participant, for which purpose a designation, change, or cancellation of bene- ficiary in a will or other document which is not so executed and filed shall have no force or effect. (2) If there is no such beneficiary, to the sur- viving wife or husband of the participant. (3) If none of the above, to the child (without regard to the definition in section 4044(2) of this title) or children of the participant (in- cluding adopted and natural children but not stepchildren) and descendants of deceased chil- dren by representation. (4) If none of the above, to the parents of the participant or the survivor of them. (5) If none of the above, to the duly ap- pointed executor or administrator of the es- tate of the participant. (6) If none of the above, to such other next of kin of the participant as may be determined in the judgment of the Secretary of State to be legally entitled to such payment, except that no payment shall be made under this paragraph until after the expiration of 30 days after the death of the participant or annu- itant. (g) Death of survivor annuitant Annuity accrued and unpaid on the death of a survivor annuitant shall be paid in the following order of precedence, and the payment bars re- covery by any other person: (1) To the duly appointed executor or admin- istrator of the estate of the survivor annu- itant. (2) If there is no such executor or adminis- trator, to such person as may be determined by the Secretary of State (after the expiration of 30 days from the date of death of the sur- vivor annuitant) to be entitled under the laws of the domicile of the survivor annuitant at the time of death. (h) Amount of credit 1 Amounts deducted and withheld from basic salary of a participant under section 4045 of this title from the beginning of the first pay period after the participant has completed 35 years of service computed under section 4056 of this title (excluding service credit for unused sick leave under section 4056(b) of this title), together with interest on the amounts at the rate of 3 percent a year compounded annually from the date of the deduction to the date of retirement or death, shall be applied toward any special con- tribution due under section 4045(d) of this title), and any balance not so required shall be re- funded in a lump sum to the participant after separation or, in the event of a death in service, to a beneficiary in the order of precedence speci- fied in subsection (f). (i) Former spouses Unless otherwise expressly provided by any spousal agreement or court order under section 4060(b)(1) of this title, the amount of a partici- pant’s or former participant’s lump-sum credit payable to a former spouse of that participant shall be— (1) if the former spouse was married to the participant throughout the period of cred- itable service of the participant, 50 percent of the lump-sum credit to which such participant would be entitled in the absence of this sub- section, or (2) if such former spouse was not married to the participant throughout such creditable service, an amount equal to such former spouse’s pro rata share of 50 percent of such lump-sum credit. The lump-sum credit of the participant shall be reduced by the amount of the lump-sum credit Page 1498 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4056 1 See Amendment of Section note below. payable to the former spouse. For the purposes of this subsection, the term ‘‘creditable service’’ means service which is creditable under part I or II. (Pub. L. 96–465, title I, § 815, Oct. 17, 1980, 94 Stat. 2116; Pub. L. 99–335, title IV, §§ 402(a)(2), 404(c), 413, June 6, 1986, 100 Stat. 609, 610, 614; Pub. L. 100–238, title II, § 218, Jan. 8, 1988, 101 Stat. 1775.) AMENDMENT OF SECTION Ex. Ord. No. 12446, § 1(a), (c), Oct. 17, 1983, 48 F.R. 48443, set out as a note under section 4067 of this title, provided that the first sentence of subsection (h) of this section, applicable (i) to contributions for civilian service performed on or after the first day of Nov. 1983, (ii) to con- tributions for prior refunds to participants for which application is received by the employing agency on and after such first day of Nov. 1983, and (iii) to excess contributions under section 4055(h) of this title and voluntary contributions under section 4065(a) of this title from the first day of Nov. 1983, is deemed to be amended to provide that interest shall be compounded at the annual rate of 3 percent per annum through December 31, 1984, and thereafter at a rate equal to the overall average yield to the Fund during the preceding fiscal year from all obliga- tions purchased by the Secretary of the Treas- ury during such fiscal year under section 4059 of this title, as determined by the Secretary of the Treasury. Editorial Notes AMENDMENTS 1988—Subsec. (a). Pub. L. 100–238 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘Whenever a participant becomes separated from the Service without becoming eligible for an annuity or a deferred annuity under this subchapter, a lump-sum credit shall be paid to the participant (and to any former spouse of the participant, in accordance with subsection (i) of this section). A participant who be- comes subject to part II of this subchapter shall be en- titled to payment of the lump-sum credit if, and 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 Sys- tem Act of 1986.’’ 1986—Subsec. (a). Pub. L. 99–335, § 413, inserted provi- sion relating to payment of a lump-sum credit for a participant who becomes subject to part II of this sub- chapter. Subsecs. (c), (d). Pub. L. 99–335, § 402(a)(2), substituted ‘‘part’’ for ‘‘subchapter’’. Subsec. (i). Pub. L. 99–335, § 404(c), inserted provision defining ‘‘creditable service’’ as service creditable under part I or II of this subchapter. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–238 effective 90 days after Jan. 8, 1988, see section 261(a) of Pub. L. 100–238, set out as a note under section 4054 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effec- tive Date note under section 8401 of Title 5, Govern- ment Organization and Employees. § 4056. Creditable service (a) Applicability of civil service provisions (1) 1 Except as otherwise specified by law, all periods of civilian and military and naval serv- ice, and all other periods through the date of final separation of a participant from the Serv- ice that the Secretary of State determines would be creditable toward retirement under the Civil Service Retirement and Disability System (as determined in accordance with section 8332 of title 5), shall be creditable for purposes of this part. Conversely, any such service performed after December 31, 1976, that would not be cred- itable under specified conditions under section 8332 of title 5, shall be excluded under this part under the same conditions. (2) The service of an individual who first be- comes a participant on or after October 17, 1983, without any credit under this section for civil- ian service performed prior to October 1, 1982, shall include credit for: (A) each period of military or naval service performed before January 1, 1957, and (B) each period of military or naval service performed after December 31, 1956, and before the separation on which the entitlement to annuity under this part is based, only if a de- posit (with interest if any is required) is made with respect to that period, as provided in sec- tion 4045(e) of this title. (3) The service of an individual who first be- came a participant on or after October 17, 1983, with credit under this section for civilian serv- ice performed prior to October 1982, shall include credit for each period of military or naval serv- ice performed before the date of the separation on which the entitlement to an annuity under this part is based, subject, in the case of mili- tary or naval service performed after December 1956, to subsection (j). (4) The service of an individual who first be- came a participant before October 17, 1983, shall include credit for each period of military or naval service performed before the date of the separation on which the entitlement to an annu- ity under this part is based, subject, in the case of military or naval service performed after De- cember 1976, to subsection (j). (b) Unused sick leave credit In computing any annuity under this part, the total service of a participant who retires on an immediate annuity or who dies leaving a sur- vivor or survivors entitled to annuity includes (without regard to the 35-year limitation im- posed by section 4046(a) of this title) the days of unused sick leave to the credit of the partici- pant, except that these days shall not be count- ed in determining average basic salary or annu- ity eligibility under this part. A contribution to the Fund shall not be required from a partici- pant for this service credit. (c) Service with other Government agency when on approved leave without pay; arrangement for payment of retirement deductions and agency contributions; special contribution (1) A participant who enters on approved leave without pay to serve as a full-time officer or em-