[Federal Register Volume 85, Number 3 (Monday, January 6, 2020)]
[Proposed Rules]
[Pages 467-469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27915]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 85, No. 3 / Monday, January 6, 2020 / 
Proposed Rules  

[[Page 467]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 831 and 842

RIN 3206-AN90


High-3 Calculation for Privatized Senate Restaurant Civil Service 
Retirement System and Federal Employees' Retirement System Employees 
and Annuitants

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes this rule to 
allow for the continuation of civil service retirement coverage for 
career Senate Restaurants employees of the Architect of the Capitol, 
who became employees of a private contractor under a food services 
contract on September 16, 2008, and career civilian employees of the 
United States permanently assigned to the food services operations of 
the House of Representatives after those operations were transferred to 
a private contractor on January 2, 1987.

DATES: Send comments on or before March 6, 2020.

ADDRESSES: You may submit comments identified by docket number and/or 
Regulatory Information Number (RIN) and title, by either of the 
following methods:
     Electronic: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.
     Email: [email protected]. Include Docket No. or RIN 
in the subject line of the email.

FOR FURTHER INFORMATION CONTACT: Jane Bancroft, (202) 606-0299.

SUPPLEMENTARY INFORMATION:

Introduction

    OPM proposes this rule to implement the provisions of Public Law 
110-279, 122 Stat. 2604 (2008) (codified at 2 U.S.C. 2051), as amended 
by Public Law 116-21, S. 1436 (2019), which allowed United States 
(Senate) Restaurants employees the ability to elect to retain Civil 
Service Retirement System (CSRS) and Federal Employees Retirement 
System (FERS) coverage after the Architect of the Capitol transferred 
its food services functions to a private contractor. In 2019, Congress 
amended 2 U.S.C. 2051 by requiring that the basic pay paid by the food 
services contractor must be treated as ``basic pay'' for purposes of 
retirement provisions. As a result, OPM is proposing this rule to 
comply with the Congressional mandate requiring that OPM promulgate 
regulations reflecting these provisions. OPM is also correcting an 
oversight related to its publication of rules implementing the 
provisions of sec. 111 of Public Law 99-500, 100 Stat. 1783-348 (1986). 
The enactment of these provisions similarly allowed House of 
Representatives (House) food services employees to elect to retain CSRS 
and FERS retirement coverage when the House transferred its food 
services functions to a private contractor. OPM's regulations 
implementing these provisions were published at 53 FR 10055 (1988) and 
were promulgated under 5 CFR 831.202. Although OPM's regulations 
provided rules associated with affected former House food services 
employees covered under CSRS, OPM did not properly publish regulations 
associated with affected former House food services employees under 
FERS. Because this rule proposes to amend OPM's preexisting House food 
services regulations at 5 CFR 831.202 to include affected former Senate 
Restaurants employees as a population subject to this regulation, and 
because OPM is proposing equivalent regulations affecting former Senate 
Restaurants employees covered under FERS at 5 CFR 842.110, OPM is 
proposing to correct this oversight by including affected former House 
food services employees as a population that is subject to the 
regulations promulgated under 5 CFR 842.110.

Background

    On October 18, 1986, Congress enacted Public Law 99-500 which 
allowed food service employees for the House of Representatives to 
elect to retain coverage under CSRS and FERS prior to becoming 
employees of a private contractor after the food services operations 
for the House was transferred to a private contract on January 3, 1987. 
Section 111(c)(1) of this Act provided that OPM must publish 
regulations to implement these provisions. As a result, on February 19, 
1987, OPM published interim regulations associated with this Act at 52 
FR 5069 (1987) (promulgated under 5 CFR 831.307). OPM did not receive 
comments on this interim rule, and on March 29, 1988, it issued a final 
rule adopting its interim rule (53 FR 10055 (1988)). While OPM's rule 
promulgated regulations related to former House food services employees 
covered under CSRS, it did not provide equivalent regulations for 
former House food services employees covered under FERS.
    Similarly, on September 16, 2008, Senate Restaurants employees of 
the Architect of the Capitol became employees of a private corporation 
after the food services operations for the Senate Restaurants were 
transferred to a private contract. Prior to this transfer, Congress 
enacted Public Law 110-279, 122 Stat. 2604 (2008)(codified at 2 U.S.C. 
2051), which allowed Senate Restaurants employees to elect to retain 
coverage under CSRS and FERS upon transfer. Unlike the 1987 House food 
service employee provisions, however, the Senate Restaurants employees' 
provisions capped the rate of basic pay of affected Senate Restaurants 
employees at the rates of basic pay they were paid by the Architect of 
the Capitol prior to transfer to the private contract in 2008.
    However, on June 12, 2019, Congress enacted technical corrections 
to the 2008 Act related to Senate Restaurants employees, removing 
language from 2 U.S.C. 2051(c)(2)(A)(ii) that required OPM to cap the 
basic pay at the rate employees received prior to transfer in 2008. See 
Public Law 116-21, S. 1436 (2019). The 2019 provisions required OPM to 
begin treating the payments

[[Page 468]]

made by the food service contractor as ``basic pay'' for purposes of 
retirement provisions.
    For those reasons, OPM is issuing this proposed rule to ensure 
Public Law 110-279 and Public Law 116-21 are fully implemented. 
Additionally, it is correcting its oversight in not publishing 
regulations related to former House food services employees covered 
under FERS in accordance with Public Law 99-500.

Employee Deductions

    As employees of a private contractor, House food services and 
Senate Restaurants employees are covered under Social Security. 
Therefore, for those employees covered under CSRS, retirement 
deductions for the Civil Service Retirement and Disability Fund are 
reduced so that the total contribution to the Old-Age, Survivors and 
Disability Insurance (OASDI) portion of Social Security and the Civil 
Service Retirement and Disability Fund does not exceed what affected 
individuals would be contributing as Congressional employees. For 
calendar year 2019, the employee deduction rate for CSRS Offset 
Congressional employees is 1.8 percent of basic pay. FERS-covered 
employees continue to have OASDI taxes as well as the FERS employee 
deduction for Congressional employees withheld from basic pay.

Regulatory Impact Analysis

    OPM has examined the impact of this rule as required by Executive 
Order 12866 and Executive Order 13563, which directs agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public, 
health, and safety effects, distributive impacts, and equity). This 
rule is not a ``significant regulatory action,'' under Executive Order 
12866.

Reducing Regulation and Controlling Regulatory Costs

    This rule is not an E.O. 13771 regulatory action because this rule 
is rule is not significant under E.O. 12866.

Regulatory Flexibility Act

    The Office of Personnel Management certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

Federalism

    We have examined this rule in accordance with Executive Order 
13132, Federalism, and have determined that this rule will not have any 
negative impact on the rights, roles and responsibilities of State, 
local, or tribal governments.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This action pertains to agency management, personnel, and 
organization and does not substantially affect the rights or 
obligations of nonagency parties and, accordingly, is not a ``rule'' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects

5 CFR Part 831

    Firefighters, Government employees, Income taxes, Intergovernmental 
relations, Law enforcement officers, Pensions, Reporting and 
recordkeeping requirements, Retirement.

5 CFR Part 842

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

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs.

    For the reasons stated in the preamble, the Office of Personnel 
Management proposes to amend 5 CFR parts 831 and 842 as follows:

PART 831--RETIREMENT

0
1. The authority citation for part 831 is revised to read as follows:

    Authority:  5 U.S.C. 8347; Sec. 831.102 also issued under 5 
U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec. 
831.108 also issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also 
issued under 5 U.S.C. 8336(d)(2), and Sec. 1313(b)(5) of Pub. L. 
107-296, 116 Stat. 2135; Sec. 831.201(b)(1) also issued under 5 
U.S.C. 8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C. 
7701(b)(2); Sec. 831.201(g) also issued under Secs. 11202(f), 
11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 
831.201(g) also issued under Secs. 7(b) and (e) of Pub. L. 105-274, 
112 Stat. 2419; Sec. 831.201(i) also issued under Secs. 3 and 7(c) 
of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.202 also issued under 
Sec. 111 of Pub. L. 99-500, 100 Stat. 1783, and Sec. 111 of Pub. L. 
99-591, 100 Stat. 3341-348, and also Sec. 1 of Pub. L. 110-279, 122 
Stat. 2602, as amended by Sec. 1(a) of Pub. L. 116-21, 133 Stat. 
903; Sec. 831.204 also issued under Sec. 102(e) of Pub. L. 104-8, 
109 Stat. 102, as amended by Sec. 153 of Pub. L. 104-134, 110 Stat. 
1321; Sec. 831.205 also issued under Sec. 2207 of Pub. L. 106-265, 
114 Stat. 784; Sec. 831.206 also issued under Sec. 1622(b) of Pub. 
L. 104-106, 110 Stat. 515; Sec. 831.301 also issued under Sec. 2203 
of Pub. L. 106-265, 114 Stat. 780; Sec. 831.303 also issued under 5 
U.S.C. 8334(d)(2) and Sec. 2203 of Pub. L. 106-235, 114 Stat. 780; 
Sec. 831.502 also issued under 5 U.S.C. 8337, and under Sec. 1(3), 
E.O. 11228, 3 CFR 1965-1965 Comp. p. 317; Sec. 831.663 also issued 
under 5 U.S.C. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also 
issued under Sec. 11004(c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec. 
831.682 also issued under Sec. 201(d) of Pub. L. 99-251, 100 Stat. 
23; Sec. 831.912 also issued under Sec. 636 of Appendix C to Pub. L. 
106-554, 114 Stat. 2763A-164; Subpart P also issued under Sec. 
535(d) of Title V of Division E of Pub. L. 110-161, 121 Stat. 2042; 
Subpart Q also issued under 5 U.S.C. 8336a; Subpart V also issued 
under 5 U.S.C. 8343a and Sec. 6001 of Pub. L. 100-203, 101 Stat. 
1330-275; Sec. 831.2203 also issued under Sec. 7001(a)(4) of Pub. 
Law 101-508, 104 Stat. 1388-328.

Subpart B--Coverage

0
2. Amend Sec.  831.202 by revising the section heading and paragraphs 
(a), (b)(1) and (3), and adding paragraphs (e) and (f) to read as 
follows:


Sec.  831.202   Continuation of coverage for food service employees of 
the House of Representatives and the Senate Restaurants.

    (a) Congressional employees who were covered by the Civil Service 
Retirement System and provide food service operations for the House of 
Representatives or the Senate Restaurants can elect to continue their 
retirement coverage under subchapter III of chapter 83 of title 5, 
United States Code, when such food service operations are transferred 
to a private contractor. These regulations also apply to any successor 
contractors.
    (b) * * *

[[Page 469]]

    (1)(i) Be a Congressional employee (as defined in section 2107 of 
title 5, United States Code), other than an employee of the Architect 
of the Capitol, engaged in providing food service operations for the 
House of Representatives under the administrative control of the 
Architect of the Capitol, or
    (ii) Be a Senate Restaurants employee who is an employee of the 
Architect of the Capitol on July 17, 2008;
* * * * *
    (3) Elect to remain covered under civil service retirement 
provisions no later than the day before the date on which the food 
service operations transfer from the House of Representatives or the 
Senate Restaurants to a private contractor; and
* * * * *
    (e) Beginning with annuity payments commencing on or after 
[EFFECTIVE DATE OF FINAL RULE], the rate of basic pay paid by a 
Contractor (defined by 2 U.S.C. 2051(a)(2)) to a covered former Senate 
Restaurants Employee (defined by 2 U.S.C. 2051(a)(1)) for any period of 
continuous service performed as an employee of the contract shall be 
deemed to be basic pay for purposes of 5 U.S.C. 8331(3) and (4).
    (f) The agency contributions and employee deductions that must be 
paid in accordance with 5 U.S.C. 8423 and 2 U.S.C. 2051(c)(6)(A)(ii) 
for the period on or after June 12, 2019, until [EFFECTIVE DATE OF 
FINAL RULE] must be treated in accordance with Sec.  831.111 of this 
title.

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

0
3. 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 Secs. 
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 Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended 
by Sec. 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec. 842.107 
also issued under Secs. 11202(f), 11232(e), and 11246(b) of Pub. L. 
105-33, 111 Stat. 251, and Sec. 7(b) of Pub. L. 105-274, 112 Stat. 
2419; Sec. 842.108 also issued under Sec. 7(e) of Pub. L. 105-274, 
112 Stat. 2419; Sec. 842.109 also issued under Sec. 1622(b) of Pub. 
L. 104-106, 110 Stat. 515; Sec. 842.110 also issued under Sec. 111 
of Pub. L. 99-500, 100 Stat. 1783, and Sec. 111 of Pub. L. 99-591, 
100 Stat. 3341-348, and also Sec. 1 of Pub. L. 110-279, 122 Stat. 
2602, as amended by Sec. 1(a) of Pub. L. 116-21, 133 Stat. 903; Sec. 
842.208 also issued under Sec. 535(d) of Title V of Division E of 
Pub. L. 110-161, 121 Stat. 2042; Sec. 842.213 also issued under 5 
U.S.C. 8414(b)(1)(B) and Sec. 1313(b)(5) of Pub. L. 107-296, 116 
Stat. 2135; Secs. 842.304and 842.305 also issued under Sec. 321(f) 
of Pub. L. 107-228, 116 Stat. 1383, 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 Sec. 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388; Sec. 
842.707 also issued under Sec. 6001 of Pub. L. 100-203, 101 Stat. 
1300; Sec. 842.708 also issued under Sec. 4005 of Pub. L. 101-239, 
103 Stat. 2106 and Sec. 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 Sec. 636 of Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-
164; Sec. 842.811 also issued under Sec. 226(c)(2) of Pub. L. 108-
176, 117 Stat. 2529; Subpart J also issued under Sec. 535(d) of 
Title V of Division E of Pub. L. 110-161, 121 Stat. 2042.

Subpart A--Coverage

0
4. Add Sec.  842.110 to read as follows:


Sec.  842.110   Continuation of coverage for food service employees of 
the House of Representatives or the Senate Restaurants.

    (a) Election. Congressional employees who were covered by FERS and 
provide food service operations for the House of Representatives or the 
Senate Restaurants can elect to continue their FERS retirement coverage 
when such food service operations are transferred to a private 
contractor. These regulations also apply to any successor contractors.
    (b) Eligibility requirements. To be eligible for continuation of 
retirement coverage, an employee must:
    (1)(i) Be a Congressional employee (as defined in sec. 2107 of 
title 5, United States Code), other than an employee of the Architect 
of the Capitol, engaged in providing food service operations for the 
House of Representatives under the administrative control of the 
Architect of the Capitol; or
    (ii) Be a Senate Restaurants employee who is an employee of the 
Architect of the Capitol on July 17, 2008;
    (2) Be subject to FERS;
    (3) Elect to remain covered under FERS retirement provisions no 
later than the day before the date on which the food service operations 
transfer from the House of Representatives or the Senate Restaurants to 
a private contractor; and
    (4) Become employed to provide food services under contract without 
a break in service. A ``break in service'' means a separation from 
employment of at least three calendar days.
    (c) Employee deductions. An employee who elects to continue 
coverage under FERS is deemed to consent to deductions from his or her 
basic pay for the Civil Service Retirement and Disability Fund in the 
amount determined in accordance with 5 U.S.C. 8422. The employer 
providing the food services under contract must, in accordance with 
procedures established by OPM, pay into the Civil Service Retirement 
and Disability Fund the amounts deducted from an employee's pay.
    (d) Employer contributions. The employer providing food services 
under contract must, in accordance with procedures established by OPM, 
pay into the Civil Service Retirement and Disability Fund amounts equal 
to any agency contributions under 5 U.S.C. 8423 that would be required 
if the individual were a Congressional employee covered by the Federal 
Employees Retirement System.
    (e) Basic pay of covered former Senate Restaurants Employees. 
Beginning with annuity payments commencing on or after [EFFECTIVE DATE 
OF FINAL RULE], the rate of basic pay paid by a Contractor (defined by 
2 U.S.C. 2051(a)(2)) to a covered former Senate Restaurants Employee 
(defined by 2 U.S.C. 2051(a)(1)) for any period of continuous service 
performed as an employee of the contract shall be deemed to be basic 
pay for purposes of 5 U.S.C. 8401(3)-(4).
    (f) Retroactive agency contributions and employee deductions 
related to covered former Senate Restaurants Employees. The agency 
contributions and employee deductions that must be paid in accordance 
with 5 U.S.C. 8423 and 2 U.S.C. 2051(c)(6)(A)(ii) for the period on or 
after June 12, 2019, until [EFFECTIVE DATE OF FINAL RULE] must be 
treated in accordance with Sec.  841.505 of this title.

[FR Doc. 2019-27915 Filed 1-3-20; 8:45 am]
 BILLING CODE 6325-23-P