[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4391 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4391

  To amend title II of the Social Security Act to repeal the windfall 
  elimination provision and protect the retirement of public servants.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 19, 2004

Mr. Brady of Texas (for himself, Mr. Shaw, Mr. Berman, Mr. McKeon, Mr. 
 Sam Johnson of Texas, and Mr. Michaud) introduced the following bill; 
         which was referred to the Committee on Ways and Means

_______________________________________________________________________

                                 A BILL


 
  To amend title II of the Social Security Act to repeal the windfall 
  elimination provision and protect the retirement of public servants.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Public Servant Retirement Protection 
Act''.

SEC. 2. REPEAL OF CURRENT WINDFALL ELIMINATION PROVISION.

    Paragraph (7) of section 215(a) of the Social Security Act (42 
U.S.C. 415(a)(7)) is repealed.

SEC. 3. REPLACEMENT OF THE WINDFALL ELIMINATION PROVISION WITH A 
              FORMULA EQUALIZING BENEFITS FOR CERTAIN INDIVIDUALS WITH 
              NON-COVERED EMPLOYMENT.

    (a) Substitution of Proportional Formula for Formula Based on 
Covered Portion of Periodic Benefit.--
            (1) In general.--Section 215(a) of the Social Security Act 
        (as amended by section 2 of this Act) is amended further by 
        inserting after paragraph (6) the following new paragraph:
    ``(7)(A) In the case of an individual whose primary insurance 
amount would be computed under paragraph (1) of this subsection, who--
            ``(i) attains age 62 after 1985 (except where he or she 
        became entitled to a disability insurance benefit before 1986 
        and remained so entitled in any of the 12 months immediately 
        preceding his or her attainment of age 62), or
            ``(ii) would attain age 62 after 1985 and becomes eligible 
        for a disability insurance benefit after 1985,
 and who first becomes eligible after 1985 for a monthly periodic 
payment (including a payment determined under subparagraph (E), but 
excluding (I) a payment under the Railroad Retirement Act of 1974 or 
1937, (II) a payment by a social security system of a foreign country 
based on an agreement concluded between the United States and such 
foreign country pursuant to section 233, and (III) a payment based 
wholly on service as a member of a uniformed service (as defined in 
section 210(m)) which is based in whole or in part upon his or her 
earnings for service which did not constitute `employment' as defined 
in section 210 for purposes of this title (hereafter in this paragraph 
and in subsection (d)(3) referred to as `noncovered service'), the 
primary insurance amount of that individual during his or her 
concurrent entitlement to such monthly periodic payment and to old-age 
or disability insurance benefits shall be computed or recomputed under 
subparagraph (B) or subparagraph (D) (as applicable).
    ``(B) In the case of an individual who first performs service 
described in subparagraph (A) after the 12th calendar month following 
the date of the enactment of the Public Servant Retirement Protection 
Act, if paragraph (1) of this subsection would apply to such individual 
(except for subparagraph (A) of this paragraph), the individual's 
primary insurance amount shall be the product derived by multiplying--
            ``(i) the individual's primary insurance amount, as 
        determined under paragraph (1) of this subsection and 
        subparagraph (C)(i) of this paragraph, by
            ``(ii) a fraction--
                    ``(I) the numerator of which is the individual's 
                average indexed monthly earnings (determined without 
                regard to subparagraph (C)(i)), and
                    ``(II) the denominator of which is an amount equal 
                to the individual's average indexed monthly earnings 
                (as determined under subparagraph (C)(i)),
rounded, if not a multiple of $0.10, to the next lower multiple of 
$0.10.
    ``(C)(i) For purposes of determining an individual's primary 
insurance amount pursuant to subparagraph (B)(i), the individual's 
average indexed monthly earnings shall be determined by treating all 
service performed after 1950 on which the individual's monthly periodic 
payment referred to in subparagraph (A) is based (other than noncovered 
service as a member of a uniformed service (as defined in section 
210(m))) as `employment' as defined in section 210 for purposes of this 
title (together with all other service performed by such individual 
consisting of `employment' as so defined).
    ``(ii) For purposes of determining average indexed monthly earnings 
as described in clause (i), the Commissioner of Social Security shall 
provide by regulation for a method for determining the amount of wages 
derived from service performed after 1950 on which the individual's 
periodic benefit is based and which is to be treated as `employment' 
solely for purposes of clause (i). Such method shall provide for 
reliance on employment records which are provided to the Commissioner 
and which constitute a reasonable basis for treatment of service as 
`employment' for such purposes, together with such other information 
received by the Commissioner as the Commissioner may consider 
appropriate as a reasonable basis for treatment of service as 
`employment' for such purposes.
    ``(D)(i) In the case of an individual who has performed service 
described in subparagraph (A) during or before the 12th calendar month 
following the date of the enactment of the Public Servant Retirement 
Protection Act, if paragraph (1) of this subsection would apply to such 
individual (except for subparagraph (A) of this paragraph), there shall 
first be computed an amount equal to the individual's primary insurance 
amount under paragraph (1) of this subsection, except that for purposes 
of such computation the percentage of the individual's average indexed 
monthly earnings established by subparagraph (A)(i) of paragraph (1) 
shall be the percent specified in clause (ii). There shall then be 
computed (without regard to this paragraph) a second amount, which 
shall be equal to the individual's primary insurance amount under 
paragraph (1) of this subsection, except that such second amount shall 
be reduced by an amount equal to one-half of the portion of the monthly 
periodic payment which is attributable to noncovered service performed 
after 1956 (with such attribution being based on the proportionate 
number of years of such noncovered service) and to which the individual 
is entitled (or is deemed to be entitled) for the initial month of his 
or her concurrent entitlement to such monthly periodic payment and old-
age or disability insurance benefits. There shall then be computed 
(without regard to this paragraph) a third amount, which shall be equal 
to the individual's primary insurance amount determined under 
subparagraph (B) as if subparagraph (B) applied in the case of such 
individual. The individual's primary insurance amount shall be the 
largest of the three amounts computed under this subparagraph (before 
the application of subsection (i)).
    ``(ii) For purposes of clause (i), the percent specified in this 
clause is--
            ``(I) 80.0 percent with respect to individuals who become 
        eligible (as defined in paragraph (3)(B)) for old-age insurance 
        benefits (or became eligible as so defined for disability 
        insurance benefits before attaining age 62) in 1986;
            ``(II) 70.0 percent with respect to individuals who so 
        become eligible in 1987;
            ``(III) 60.0 percent with respect to individuals who so 
        become eligible in 1988;
            ``(IV) 50.0 percent with respect to individuals who so 
        become eligible in 1989; and
            ``(V) 40.0 percent with respect to individuals who so 
        become eligible in 1990 or thereafter.
    ``(E)(i) Any periodic payment which otherwise meets the 
requirements of subparagraph (A), but which is paid on other than a 
monthly basis, shall be allocated on a basis equivalent to a monthly 
payment (as determined by the Commissioner of Social Security), and 
such equivalent monthly payment shall constitute a monthly periodic 
payment for purposes of this paragraph.
    ``(ii) In the case of an individual who has elected to receive a 
periodic payment that has been reduced so as to provide a survivor's 
benefit to any other individual, the payment shall be deemed to be 
increased (for purposes of any computation under this paragraph or 
subsection (d)(3) by the amount of such reduction.
    ``(iii) For purposes of this paragraph, the term `periodic payment' 
includes a payment payable in a lump sum if it is a commutation of, or 
a substitute for, periodic payments.
    ``(F)(i) Subparagraph (D) shall not apply in the case of an 
individual who has 30 years or more of coverage. In the case of an 
individual who has more than 20 years of coverage but less than 30 
years of coverage (as so defined), the percent specified in the 
applicable subdivision of subparagraph (D)(ii) shall (if such percent 
is smaller than the applicable percent specified in the following 
table) be deemed to be the applicable percent specified in the 
following table:

``If the number of such                      The applicable percent is:
        individual's years of 
        coverage (as so defined) 
        is:
        29.....................................................      85
        28.....................................................      80
        27.....................................................      75
        26.....................................................      70
        25.....................................................      65
        24.....................................................      60
        23.....................................................      55
        22.....................................................      50
        21.....................................................      45
    ``(ii) For purposes of clause (i), the term `year of coverage' 
shall have the meaning provided in paragraph (1)(C)(ii), except that 
the reference to `15 percent' therein shall be deemed to be a reference 
to `25 percent'.
    ``(G) An individual's primary insurance amount determined under 
this paragraph shall be deemed to be computed under paragraph (1) of 
this subsection for the purpose of applying other provisions of this 
title.
    ``(H) This paragraph shall not apply in the case of an individual 
whose eligibility for old-age or disability insurance benefits is based 
on an agreement concluded pursuant to section 233 or an individual who 
on January 1, 1984--
            ``(i) is an employee performing service to which social 
        security coverage is extended on that date solely by reason of 
        the amendments made by section 101 of the Social Security 
        Amendments of 1983; or
            ``(ii) is an employee of a nonprofit organization which (on 
        December 31, 1983) did not have in effect a waiver certificate 
        under section 3121(k) of the Internal Revenue Code of 1954 and 
        to the employees of which social security coverage is extended 
        on that date solely by reason of the amendments made by section 
        102 of that Act, unless social security coverage had previously 
        extended to service performed by such individual as an employee 
        of that organization under a waiver certificate which was 
        subsequently (prior to December 31, 1983) terminated.''.
            (2) Conforming amendments.--
                    (A) Section 215(d)(3) of such Act (42 U.S.C. 
                415(d)(3)) is amended--
                            (i) by striking ``subsection (a)(7)(C)'' 
                        each place it appears and inserting 
                        ``subsection (a)(7)(E)'';
                            (ii) by striking ``subparagraph (E)'' and 
                        inserting ``subparagraph (H)''; and
                            (iii) by striking ``subparagraph (D)'' and 
                        inserting ``subparagraph (F)(i)''.
                    (B) Section 215(f)(9)(A) of such Act (42 U.S.C. 
                415(f)(9)(A)) is amended by striking ``(a)(7)(C)'' and 
                inserting ``(a)(7)(E)''.

SEC. 4. EFFECTIVE DATE.

    The amendments made by this Act shall apply with respect to monthly 
insurance benefits for months commencing with or after the 12th 
calendar month following the date of the enactment of this Act. 
Notwithstanding section 215(f) of the Social Security Act, the 
Commissioner of Social Security shall recompute primary insurance 
amounts to the extent necessary to carry out the amendments made by 
this Act.
                                 <all>