[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]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 70, No. 107 / Monday, June 6, 2005 / Rules
and Regulations
[[Page 32709]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 6325-39-P