1.Short title; table of
contents
(a)This Act may be cited
as the FSS Retirement Fairness Act of
2010
.
(b)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.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.
(a)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)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)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)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)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)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
systemUnder 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 systemUnder 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)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 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)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)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)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)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.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.