[Federal Register Volume 70, Number 107 (Monday, June 6, 2005)]
[Rules and Regulations]
[Pages 32709-32711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11134]



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  Federal Register / Vol. 70, No. 107 / Monday, June 6, 2005 / Rules 
and Regulations  

[[Page 32709]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 842

RIN 3206-AK73


Retirement Coverage of Air Traffic Controllers

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing this 
interim rule to revise the regulations governing the retirement 
coverage of air traffic controllers under the Federal Employees' 
Retirement System. These rules are necessary because of the recent 
enactment of new statutory provisions relating to the retirement 
definition of air traffic controllers. These rules also implement the 
deposit requirement for crediting past service as a second-level 
supervisor of air traffic controllers for retirement purposes.

DATES: This rule is effective June 6, 2005. We must receive your 
comments by July 6, 2005.

ADDRESSES: You may submit comments, identified by RIN number 3206-AK73, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include RIN number 3206-AK73 in 
the subject line of the message.
     Mail: Mary Ellen Wilson, Manager, Retirement Group, Office 
of Personnel Management, 1900 E Street, NW., Washington, DC 20415-3200.

FOR FURTHER INFORMATION CONTACT: Mary Ellen Wilson, (202) 606-0299.

SUPPLEMENTARY INFORMATION: Section 226 of Public Law 108-176, 117 Stat. 
2490, the Vision 100--Century of Aviation Reauthorization Act, amends 
subchapter III of chapter 83 of title 5, United States Code, the 
statutory provisions for the Civil Service Retirement System (CSRS), 
and chapter 84 of title 5, United States Code, the Federal Employees' 
Retirement System (FERS), by adding the definition of air traffic 
controller to each. The new definition of air traffic controller 
includes the class of employees traditionally considered to be air 
traffic controllers (ATC)--that is, civilian employees of the 
Department of Transportation or the Department of Defense working in 
air traffic control facilities or flight service station facilities as 
either frontline air traffic controllers or immediate supervisors (i.e. 
first-level supervisors) of frontline air traffic controllers. The new 
definition of air traffic controller expands the class of individuals 
eligible for special ATC retirement benefits to include second-level 
supervisors (i.e., supervisors of immediate supervisors of frontline 
ATCs).
    Subsection (a)(3)(A) of Sec.  226 of Public Law 108-176 amends 5 
U.S.C. 8335(a), the provisions applicable to ATC mandatory retirement 
under CSRS, to provide that the newly-added second-level supervisory 
ATCs are not subject to mandatory retirement. Subsection (a)(3)(B) of 
Sec.  226 similarly amends 5 U.S.C. 8425(a), the provisions applicable 
to ATC mandatory retirement under FERS.
    Subsection (c) provides that the amendments made by Sec.  226 take 
effect 60 days after the date of enactment (December 12, 2003), making 
them effective on February 10, 2004. It further provides that, in 
general, second-level ATC service which was performed before February 
10, 2004, is creditable as ATC service for CSRS and FERS retirement 
purposes when retirement eligibility is based on a separation which 
occurs on or after February 10, 2004. However, FERS credit for pre-
February 10, 2004, second-level supervisory ATC service requires the 
payment of a deposit.
    The deposit with respect to pre-February 10, 2004, FERS second-
level supervisory ATC service consists of the amount by which the FERS 
deductions from pay which would have been required if at the time the 
service was performed the service had been air traffic controller 
service exceeds the unrefunded deductions or deposits actually made at 
the regular employee rate, plus interest. It should be noted that since 
an individual can receive credit for second-level supervisory ATC 
service only when the individual's retirement eligibility is based on a 
separation occurring on or after February 10, 2004, payment of the 
deposit under subsection (c) would benefit an individual only when the 
individual's retirement eligibility is based on a separation occurring 
on or after that date. Section 226 requires no additional contributions 
for pre-February 10, 2004, second-level supervisory ATC service under 
CSRS, because the regular and ATC contribution rates are the same under 
CSRS.
    Therefore, OPM is amending 5 CFR part 842, subpart H, the subpart 
concerning retirement coverage of law enforcement officers, 
firefighters, and air traffic controllers under FERS. Specifically, 
subpart H is amended at 5 CFR 842.802 and 842.806, and a new section 
842.811 is being added.
    In Sec.  842.802 the definition of air traffic controller is 
amended to include second-level supervisors of ATCs.
    Section 842.806(a) is amended to exclude second-level supervisors 
of ATCs from mandatory separation.
    Section 842.811 is being added to subchapter H to establish the 
time, form, and manner in which deposits permitted under subparagraph 
(c) of Sec.  226 of Public Law 108-176 must be completed. Section 
842.811 provides that agencies employing ATCs (i.e., the Department of 
Transportation and the Department of Defense) are responsible for 
processing deposit applications and payments.

Waiver of General Notice of Proposed Rulemaking

    Under section 553(b)(3)(B), and (d)(3) of title 5, United States 
Code, I find that good cause exists for waiving the general notice of 
proposed rulemaking and for making these rules effective in less than 
30 days. The processing of deposits for air traffic controller service 
by qualifying air traffic controllers under these regulations will 
affect qualifying employees' retirement coverage and eligibility for 
special retirement benefits under the air traffic controller 
provisions. Publication of a general notice on proposed rulemaking 
would be contrary to the public interest

[[Page 32710]]

because it would delay the completion of the deposits of qualifying 
individuals.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

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 the retirement benefits of a small number of air 
traffic controllers.

List of Subjects in 5 CFR Part 842

    Air traffic controllers, Alimony, Firefighters, Government 
employees, Law enforcement officers, Pensions, Retirement.

    U.S. Office of Personnel Management.
Dan G. Blair,
Acting Director.


0
For the reasons stated in the preamble, the Office of Personnel 
Management amends 5 CFR part 842 as follows:

PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY

0
1. The authority citation for part 842 is revised to read as follows:

    Authority: 5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also 
issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under 
sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105 
also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 
also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as 
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec. 
842.107 also issued under sections 11202(f), 11232(e), and 11246(b) 
of Pub. L. 105-33, 111 Stat. 251, and section 7(b) of Pub. L. 105-
274, 112 Stat. 2419; Sec. 842.108 also issued under section 7(e) of 
Pub. L. 105-274, 112 Stat. 2419; Sec. 842.213 also issued under 5 
U.S.C. 8414(b)(1)(B) and section 1313(b)(5) of Pub. L. 107-296, 116 
Stat. 2135; Secs. 842.604 and 842.611 also issued under 5 U.S.C. 
8417; Sec. 842.607 also issued under 5 U.S.C. 8416 and 8417; Sec. 
842.614 also issued under 5 U.S.C. 8419; Sec. 842.615 also issued 
under 5 U.S.C. 8418; Sec. 842.703 also issued under section 
7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388; Sec. 842.707 also 
issued under section 6001 of Pub. L. 100-203, 101 Stat. 1300; Sec. 
842.708 also issued under section 4005 of Pub. L. 101-239, 103 Stat. 
2106 and section 7001 of Pub. L. 101-508, 104 Stat. 1388; subpart H 
also issued under 5 U.S.C. 1104; Sec. 842.810 also issued under 
section 636 of Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-164; 
Sec. 842.811 also issued under section 226(c)(2) of Public Law 108-
176, 117 Stat. 2529.

Subpart H--Law Enforcement Officers, Firefighters, and Air Traffic 
Controllers

0
2. In Sec.  842.802, revise the definition of air traffic controller to 
read as follows:


Sec.  842.802  Definitions.

* * * * *
    Air traffic controller means a civilian employee of the Department 
of Transportation or the Department of Defense in an air traffic 
control facility or flight service station facility who is actively 
engaged in the separation and control of air traffic or in providing 
preflight, inflight, or airport advisory service to aircraft operators, 
or who is the immediate supervisor of such an employee, as provided by 
5 U.S.C. 8401(35)(A). Also included in this definition is a civilian 
employee of the Department of Transportation or the Department of 
Defense who is the immediate supervisor of a person described under 5 
U.S.C. 2109(1)(B) (i.e., a second-level supervisor), as provided by 5 
U.S.C. 8401(35)(B).
* * * * *

0
3. Amend Sec.  842.806 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  842.806  Mandatory separation.

    (a) The mandatory separation provisions of 5 U.S.C. 8425 apply to 
all law enforcement officers and firefighters, including those in 
secondary positions, and air traffic controllers, with the exception of 
a civilian employee of the Department of Transportation or the 
Department of Defense who is the immediate supervisor of a person 
described under 5 U.S.C. 2109(1)(B) (i.e., a second-level supervisor). 
* * *
* * * * *

0
4. Add Sec. 842.811 to read as follows:


Sec.  842.811  Deposits for second-level supervisory air traffic 
controller service performed before February 10, 2004.

    (a)(1) Eligibility--current and former employees, and retirees. A 
current or former employee, or a retiree who was employed as a civilian 
employee of the Department of Transportation or the Department of 
Defense before February 10, 2004, as the immediate supervisor of a 
person described in 5 U.S.C. 2109(1)(B) may make a deposit for such 
service, in a form prescribed by OPM, so that such service may be 
credited as air traffic controller service for FERS purposes subject to 
paragraph (h) of this section.
    (2) Eligibility--survivors. A survivor of a current employee, 
former employee, or a retiree eligible to make a deposit under 
paragraph (a)(1) of this section may make a deposit under this section 
when the current or former employee, or a retiree--
    (i) Dies during the period beginning February 10, 2004, and ending 
November 28, 2006, without submitting an application under this 
section; or
    (ii) Dies after submitting an application to make a deposit under 
this section within the time limit set out in paragraph (c) of this 
section without completing a deposit.
    (b) Filing of deposit application. An individual eligible to make a 
deposit under paragraph (a) of this section for service described under 
paragraph (a)(1) of this section must submit a written application to 
make a deposit for such service with the appropriate office in the 
agency where such service was performed.
    (c) Time limit for filing application. An application to make a 
deposit under this section must be submitted on or before November 28, 
2006.
    (d)(1) Amount of deposit. A deposit under this section shall be 
computed using distinct periods of service. For the purpose of this 
section, a distinct period of service means a period of service not 
interrupted by a break in service of more than 3 days. A deposit may be 
made for a distinct period of service; however, such a deposit shall be 
ineffective if deposits are not completed for all distinct periods of 
service described under paragraph (a) of this section.
    (2) The amount of deposit under this section shall be an amount 
equal to the amount by which the deductions from pay which would have 
been required under 5 U.S.C. chapter 84, subchapter II, if at the time 
the service was performed the service had been air traffic controller 
service exceeds the unrefunded deductions or deposits actually made 
under 5 U.S.C. chapter 84, subchapter II, with respect to such service, 
plus interest.
    (e)(1) Interest. Interest shall be computed as described under 
paragraphs (2) and (3) of 5 U.S.C. 8334(e). Interest shall be computed 
for each distinct period of service from the midpoint of the distinct 
period of service.
    (2) The computation of interest is on the basis of 30 days to the 
month. Interest is computed for the actual calendar time involved in 
each case.
    (f) Forms of deposit. A deposit under this section may be made as a 
single lump sum or in installments.
    (g)(1) Processing deposit applications and payments. Upon receiving 
an application for deposit under this section, the agency shall 
determine whether the application meets the requirements of this 
section; compute

[[Page 32711]]

the deposit, including interest; and advise the applicant of the total 
amount of deposit due.
    (2) The agency shall establish a deposit account showing the total 
amount due and a payment schedule (unless deposit is made in one lump 
sum) to record the date and amount of each payment.
    (3) If an eligible individual cannot make payment in one lump sum, 
the agency shall accept installment payments (by allotments or 
otherwise). The agency, however, is not required to accept individual 
checks in amounts less than $50.
    (4) Payments received by the agency shall be remitted to OPM 
immediately for deposit to the Civil Service Retirement and Disability 
Fund.
    (5) Once a deposit has been paid in full or otherwise closed out, 
the agency shall submit the documentation pertaining to the deposit to 
OPM in accordance with instructions issued by OPM.
    (h) Effect of deposit. An individual completing a deposit under 
this section whose entitlement to an annuity is based on a separation 
from service on or after February 10, 2004, will receive air traffic 
controller retirement credit for such service, for annuity entitlement 
and computation purposes, when OPM receives certification that the 
deposit has been paid in full, and the deposit payment is remitted to 
the Civil Service Retirement and Disability Fund.

[FR Doc. 05-11134 Filed 6-3-05; 8:45 am]
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