< Back to H.R. 5115 (111th Congress, 2009–2010)

Text of the FSS Retirement Fairness Act of 2010

This bill was introduced on April 22, 2010, in a previous session of Congress, but was not enacted. The text of the bill below is as of Apr 22, 2010 (Introduced).

Source: GPO

I

111th CONGRESS

2d Session

H. R. 5115

IN THE HOUSE OF REPRESENTATIVES

April 22, 2010

(for himself and Mr. Rush) introduced the following bill; which was referred to the Committee on Oversight and Government Reform

A BILL

To recognize the key contributions of flight support specialists to our Nation’s aviation safety by restoring the retirement treatment of flight support specialists whose functions were outsourced by the Federal Government in 2005.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the FSS Retirement Fairness Act of 2010.

(b)

Table of contents

The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Applicability.

Sec. 4. Provisions relating to persons other than annuitants.

Sec. 5. Special rule relating to immediate retirement.

Sec. 6. Provisions relating to annuitants.

Sec. 7. Regulations.

2.

Definitions

For purposes of this Act—

(1)

the term air traffic controller has the meaning given such term under section 2109 of title 5, United States Code;

(2)

the term flight service station controller or FSS controller means a civilian employee of the Department of Transportation who is—

(A)

an air traffic controller within the meaning of section 2109(1)(A)(ii) of title 5, United States Code; or

(B)

an air traffic controller within the meaning of section 2109(1)(B) of title 5, United States Code, who supervises air traffic controllers described in subparagraph (A);

(3)

the term Government retirement system means—

(A)

the retirement system under subchapter III of chapter 83 of title 5, United States Code (relating to the Civil Service Retirement System); and

(B)

the retirement system under chapter 84 of title 5, United States Code (relating to the Federal Employees’ Retirement System);

(4)

the terms lump-sum credit, average pay, and Government have the respective meanings given such terms under the Government retirement system involved; and

(5)

the term Civil Service Retirement and Disability Fund refers to the fund under section 8348 of title 5, United States Code.

3.

Applicability

(a)

In general

This Act shall apply with respect to any individual who—

(1)

during the period beginning on February 1, 2005, and ending on October 3, 2005—

(A)

was separated from Government service, either voluntarily or involuntarily (other than for cause on charges of misconduct or delinquency), from a flight service station controller position; or

(B)

was reassigned or transferred from an FSS controller position—

(i)

to a different Government position (other than as an air traffic controller) in which such individual ceased to be subject to a Government retirement system; or

(ii)

to a different Government position (other than as an air traffic controller) in which such individual remained subject to a Government retirement system; and

(2)

as of the date of the separation described in paragraph (1)(A) or of the reassignment or transfer (as the case may be) described in paragraph (1)(B), had completed at least 5 years of service as an FSS controller which was creditable for purposes of a Government retirement system.

(b)

Exclusions

Notwithstanding any provision of subsection (a), this Act shall not apply with respect to—

(1)

any individual who, as of the date of the enactment of this Act, is otherwise entitled (or would, on proper application, otherwise be entitled) to an annuity under a Government retirement system (including an annuity under section 8414 of title 5, United States Code) based on the service of such individual, except as provided in section 6; or

(2)

any individual—

(A)

for purposes of subchapter III of chapter 83 of title 5, United States Code, if, as of the date of the enactment of this Act, such individual—

(i)

has taken a lump-sum credit under section 8342 of such title 5 which had the effect of terminating all rights under such subchapter based on the service of such individual as an FSS controller; and

(ii)

has not made the deposit required in order to have credit for such service restored under such subchapter, as determined by the Office of Personnel Management; or

(B)

for purposes of chapter 84 of title 5, United States Code, if, as of the date of the enactment of this Act, such individual has taken a lump-sum credit under section 8424 of such title 5 which had the effect of terminating all rights under such chapter based on the service of such individual as an FSS controller.

4.

Provisions relating to persons other than annuitants

(a)

Qualified service

For purposes of this Act, the term qualified service means—

(1)

any service performed as an employee of a contractor described in section 179(a)(1)(A) of the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006 (Public Law 109–115; 119 Stat. 2427); and

(2)

any service which (disregarding this Act) is otherwise creditable under subchapter III of chapter 83, or under chapter 84, of title 5, United States Code, other than as an air traffic controller;

except that such term shall not include any service performed by an individual after the last day of the month in which such individual becomes 56 years of age or, in the case of service described in paragraph (1), any service performed on a temporary, intermittent, or other basis which, if performed as an FSS controller, would not be creditable, for retirement purposes, by reason of section 8347(g) or 8402(c) of title 5, United States Code, or any other similar provision of law, as determined by the Office of Personnel Management.
(b)

Election

Any individual to whom this Act applies may, within such period of time (not less than 12 months in duration) and otherwise in such manner as the Office of Personnel Management shall by regulation prescribe, make an election under this section.

(c)

Effect of an election

An individual making an election under this section shall be entitled—

(1)

with respect to qualified service performed by such individual during the period beginning on February 1, 2005, and ending on the effective date of such election—

(A)

to have such service treated in the same manner as if it had been performed as an FSS controller for purposes of—

(i)

any determination of eligibility for immediate retirement under section 8336(e) or 8412(e) of title 5, United States Code, or under section 5; and

(ii)

any computation of annuity under—

(I)

the provisions of section 8339(e), or subsection (d) or (e) of section 8415 of title 5, United States Code; or

(II)

any of the provisions referred to in subclause (I), applied in accordance with section 5; except that

(B)

no compensation received for service performed during such period may be taken into account for purposes of any determination of such individual’s average pay; and

(2)

with respect to qualified service performed by such individual after the effective date of such election—

(A)

to have such service treated in the same manner as if it had been performed as an FSS controller for purposes of—

(i)

any determination of eligibility for immediate retirement under section 8336(e) or 8412(e) of title 5, United States Code, or under section 5; and

(ii)

any computation of annuity under—

(I)

the provisions of section 8339(e), or subsection (d) or (e) of section 8415 of title 5, United States Code; or

(II)

any of the provisions referred to in subclause (I), applied in accordance with section 5, and

(B)

to have basic pay received by such individual for such service (not to exceed the amount determined applying the rate of basic pay last received by the individual while serving as an FSS controller before the date of such election) treated in the same manner as if it were basic pay received for service performed as an FSS controller, for purposes of any determination of such individual’s average pay,

subject to subsection (d).
(d)

Employee contributions required for post-Election service

(1)

In general

The provisions of subsection (c)(2) shall not apply unless, as part of the election made by the individual under this section, such individual agrees to make contributions to the Civil Service Retirement and Disability Fund in conformance with the requirements of this subsection.

(2)

Requirements relating to qualified service otherwise subject to a Government retirement system

Under this subsection, in the case of any qualified service performed by an individual in a Government position (other than an FSS controller position) on the basis of which such individual is subject to a Government retirement system, the employee contribution shall be determined based on—

(A)

the basic pay actually received by such individual for such service (determined in a manner consistent with the limitation specified in the parenthetical matter contained in subsection (c)(2)(B)); and

(B)

the percentage contribution which would be required if the individual were serving in an FSS controller position.

(3)

Requirements relating to qualified service not otherwise subject to any Government retirement system

Under this subsection, in the case of any qualified service which is not covered by paragraph (2), the electing individual shall pay currently into the Civil Service Retirement and Disability Fund, in accordance with arrangements acceptable to the Office of Personnel Management, the employee contributions which would be determined, under applicable provisions of subchapter III of chapter 83, or of chapter 84, of title 5, United States Code, as the case may be, based on—

(A)

the basic pay actually received by such individual for such service (determined in a manner consistent with the limitation specified in the parenthetical matter contained in subsection (c)(2)(B)); and

(B)

the percentage contribution which would be required if the individual were serving in an FSS controller position,

treating the pay received by such individual for such service as if it were basic pay within the meaning of subchapter III of chapter 83, or of chapter 84, of title 5, United States Code (whichever Government retirement system applied at the time of the individual’s separation described in section 3(a)(1)(A) or reassignment or transfer described in section 3(a)(1)(B), as the case may be).
(e)

Government contributions

Nothing in this section shall be considered—

(1)

to affect the amount of any contributions which (but for this Act) would otherwise be payable by an employing Governmental entity under section 8334 or 8423 of title 5, United States Code, with respect to any Government service actually performed by such employee during any period of time to which subsection (c)(1) or (c)(2) applies; or

(2)

to create any obligation on the part of any non-Governmental entity to make any employer contributions to the Civil Service Retirement and Disability Fund with respect to any service performed during any period of time to which either subsection (c)(1) or subsection (c)(2) applies.

5.

Special rule relating to immediate retirement

(a)

In general

In the case of an individual who makes an election under section 4, any determination of eligibility for or the amount of any annuity to which such individual is entitled under subchapter III of chapter 83 or under chapter 84 of title 5, United States Code, shall be made in accordance with the provisions of law that would otherwise apply, subject to the following:

(1)

In addition to any other combination of age and service for entitlement to an immediate annuity which might otherwise apply, any such individual is entitled to an immediate annuity—

(A)

if the individual is an individual who, as of the effective date of such individual’s election under section 4, is not performing service which is subject to a Government retirement system, beginning on the later of—

(i)

the last day of the month in which such individual attains 56 years of age; or

(ii)

the effective date of such election;

except if the individual has become (and as of the date specified in clause (i) or (ii), whichever would otherwise apply, remains) a Government employee subject to a Government retirement system, in which case entitlement commences on the date described in subparagraph (B)(ii); or
(B)

if the individual is an individual who is not covered by subparagraph (A), beginning on the later of—

(i)

the last day of the month in which such individual attains 56 years of age; or

(ii)

the date on which such individual separates from Government service or transfers to a position which is not subject to a Government retirement system.

(2)

The annuity of a former FSS controller who becomes entitled to an immediate annuity pursuant to this subsection shall, under regulations prescribed by the Office of Personnel Management, be computed—

(A)

with respect to service subject to subchapter III of chapter 83 of title 5, United States Code, in the same manner as would apply under section 8339(e) of such title if such controller had retired under section 8336(e) of such title; and

(B)

with respect to service subject to chapter 84 of title 5, United States Code—

(i)

in the same manner as would apply under section 8415(d) of such title if such controller had retired under section 8412(e) of such title; except that

(ii)

the total service used in computing such annuity may not exceed—

(I)

the total service that would (but for this Act) otherwise have been used; plus

(II)

any qualified service which is creditable for that purpose by reason of section 4.

(3)

The average pay used in any computation under paragraph (2) shall be determined in accordance with the provisions of law that (disregarding this Act) would otherwise apply, subject to paragraphs (1)(B) and (2)(B) of section 4(c).

(4)

In the case of an individual described in paragraph (1)(A), such individual shall, for purposes of any determination of eligibility for an annuity under subchapter III of chapter 83 of title 5, United States Code, by reason of this subsection, be considered to have satisfied the requirement of section 8333(b) of such title if such individual would have satisfied such requirement had such individual separated from service on the date of such individual’s separation under section 3(a)(1)(A) or reassignment or transfer under section 3(a)(1)(B), as the case may be.

(b)

FEHBP

In the case of an individual who becomes entitled to an immediate annuity by reason of subsection (a), the condition for continued enrollment in a health benefits plan under section 8905(b) of title 5, United States Code, shall be considered met if—

(1)

in the case of an individual whose entitlement arises pursuant to a separation from Government service (including a reassignment or transfer to a position in which such individual ceases to be subject to a Government retirement system), such condition is met by such individual either—

(A)

at the time of separation; or

(B)

at the time of such individual’s separation (as described in section 3(a)(1)(A)) or reassignment or transfer (as described in section 3(a)(1)(B)); or

(2)

in the case of an individual whose entitlement arises in a manner other than as described in paragraph (1), such condition is met by such individual at the time described in paragraph (1)(B).

An individual who becomes eligible for continued enrollment in a health benefits plan by reason of this subsection may do so by filing an application at the time and under the conditions prescribed by the Office of Personnel Management in regulations. Continued enrollment under this subsection shall be implemented based on the individual’s enrollment as of the time specified in paragraph (1) or (2), as the case may be, except that nothing in this subsection shall be considered to allow coverage to be obtained for any goods or services received, or to require that any individual or Government contributions for coverage be made with respect to any period ending, before the date on which the individual enrolls in a health benefits plan under the preceding sentence.
6.

Provisions relating to annuitants

(a)

In general

The annuity of any individual who is excluded from the application of the preceding provisions of this Act by reason of section 3(b)(1) shall, upon application filed by such individual within the time and in the manner prescribed under section 4(b), be recomputed, effective with respect to amounts accruing for months beginning on or after the date of such application, so that the amount of such annuity is equal to the amount that would then be payable if—

(1)

any qualified service performed by such individual during the period beginning on February 1, 2005, and ending on the effective date of the application had been credited under subchapter III of chapter 83 of title 5, United States Code, or chapter 84 of such title, as the case may be, as if FSS controller service;

(2)

such individual had separated from service on the latest of—

(A)

the separation date on which such individual’s annuity would otherwise be based;

(B)

the effective date of the application; or

(C)

the last day of qualified service performed by such individual, if earlier than the date under subparagraph (B); and

(3)

as of the separation date determined under paragraph (2), such individual was entitled to—

(A)

retire under section 8336(e) of title 5, United States Code, and computation of annuity under section 8339(e) of such title; or

(B)

retire under section 8412(e) of title 5, United States Code, and computation of annuity under section 8415(d) of such title,

as the case may be, subject to the condition specified in section 4(c)(1)(B).
(b)

Survivors

In the case of an individual eligible to submit an application under subsection (a) who dies before the end of the period allowable under section 4(b), an application under this section may, for purposes of any survivor annuity, be made—

(1)

by a survivor of the individual; and

(2)

if submitted by—

(A)

the deadline that would apply under subsection (a); or

(B)

if later, the date occurring 12 months after the individual’s date of death.

(c)

Definition

For purposes of subsection (b), the term effective date of the application means the first day of the first month beginning on or after the date on which such application is duly filed.

7.

Regulations

The Office of Personnel Management may prescribe any regulations necessary to carry out this Act, including provisions for determining basic pay in connection with service performed for a non-Government entity.