I 

111TH CONGRESS 

2D SESSION H. R. 5115 

To recognize the key contributions of flight support specialists to our Nation’s 

aviation safety by restoring the retirement treatment of flight support 

specialists whose functions were outsourced by the Federal Government 

in 2005. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 22, 2010 

Mr. SCHAUER (for himself and Mr. RUSH) introduced the following bill; which 

was referred to the Committee on Oversight and Government Reform 

A BILL 

To recognize the key contributions of flight support specialists to our Nation’s aviation safety by restoring the retirement treatment of flight support specialists whose 

functions were outsourced by the Federal Government 

in 2005. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘FSS Retirement Fairness Act of 2010’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 


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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. 

1 SEC. 2. DEFINITIONS. 

2 For purposes of this Act— 

3 (1) the term ‘‘air traffic controller’’ has the 

4 meaning given such term under section 2109 of title 

5 5, United States Code; 

6 (2) the term ‘‘flight service station controller’’ 

7 or ‘‘FSS controller’’ means a civilian employee of the 

8 Department of Transportation who is— 

9 (A) an air traffic controller within the 

10 meaning of section 2109(1)(A)(ii) of title 5, 

11 United States Code; or 

12 (B) an air traffic controller within the 

13 meaning of section 2109(1)(B) of title 5, 

14 United States Code, who supervises air traffic 

15 controllers described in subparagraph (A); 

16 (3) the term ‘‘Government retirement system’’ 

17 means— 

18 (A) the retirement system under sub19 chapter III of chapter 83 of title 5, United 

20 States Code (relating to the Civil Service Re21 tirement System); and 


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1 (B) the retirement system under chapter 

2 84 of title 5, United States Code (relating to 

3 the Federal Employees’ Retirement System); 

4 (4) the terms ‘‘lump-sum credit’’, ‘‘average 

5 pay’’, and ‘‘Government’’ have the respective mean6 ings given such terms under the Government retire7 ment system involved; and 

8 (5) the term ‘‘Civil Service Retirement and Dis9 ability Fund’’ refers to the fund under section 8348 

10 of title 5, United States Code. 

11 SEC. 3. APPLICABILITY. 

12 (a) IN GENERAL.—This Act shall apply with respect 

13 to any individual who— 

14 (1) during the period beginning on February 1, 

15 2005, and ending on October 3, 2005— 

16 (A) was separated from Government serv17 ice, either voluntarily or involuntarily (other 

18 than for cause on charges of misconduct or de19 linquency), from a flight service station con20 troller position; or 

21 (B) was reassigned or transferred from an 

22 FSS controller position— 

23 (i) to a different Government position 

24 (other than as an air traffic controller) in 


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1 which such individual ceased to be subject 

2 to a Government retirement system; or 

3 (ii) to a different Government position 

4 (other than as an air traffic controller) in 

5 which such individual remained subject to 

6 a Government retirement system; and 

7 (2) as of the date of the separation described 

8 in paragraph (1)(A) or of the reassignment or trans9 fer (as the case may be) described in paragraph 

10 (1)(B), had completed at least 5 years of service as 

11 an FSS controller which was creditable for purposes 

12 of a Government retirement system. 

13 (b) EXCLUSIONS.—Notwithstanding any provision of 

14 subsection (a), this Act shall not apply with respect to— 

15 (1) any individual who, as of the date of the en16 actment of this Act, is otherwise entitled (or would, 

17 on proper application, otherwise be entitled) to an 

18 annuity under a Government retirement system (in19 cluding an annuity under section 8414 of title 5, 

20 United States Code) based on the service of such in21 dividual, except as provided in section 6; or 

22 (2) any individual— 

23 (A) for purposes of subchapter III of chap24 ter 83 of title 5, United States Code, if, as of 


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1 the date of the enactment of this Act, such indi2 vidual— 

3 (i) has taken a lump-sum credit under 

4 section 8342 of such title 5 which had the 

5 effect of terminating all rights under such 

6 subchapter based on the service of such in7 dividual as an FSS controller; and 

8 (ii) has not made the deposit required 

9 in order to have credit for such service re10 stored under such subchapter, as deter11 mined by the Office of Personnel Manage12 ment; or 

13 (B) for purposes of chapter 84 of title 5, 

14 United States Code, if, as of the date of the en15 actment of this Act, such individual has taken 

16 a lump-sum credit under section 8424 of such 

17 title 5 which had the effect of terminating all 

18 rights under such chapter based on the service 

19 of such individual as an FSS controller. 

20 SEC. 4. PROVISIONS RELATING TO PERSONS OTHER THAN 

21 ANNUITANTS. 

22 (a) QUALIFIED SERVICE.—For purposes of this Act, 

23 the term ‘‘qualified service’’ means— 

24 (1) any service performed as an employee of a 

25 contractor described in section 179(a)(1)(A) of the 


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1 Transportation, Treasury, Housing and Urban De2 velopment, the Judiciary, the District of Columbia, 

3 and Independent Agencies Appropriations Act, 2006 

4 (Public Law 109–115; 119 Stat. 2427); and 

5 (2) any service which (disregarding this Act) is 

6 otherwise creditable under subchapter III of chapter 

7 83, or under chapter 84, of title 5, United States 

8 Code, other than as an air traffic controller; 

9 except that such term shall not include any service per10 formed by an individual after the last day of the month 

11 in which such individual becomes 56 years of age or, in 

12 the case of service described in paragraph (1), any service 

13 performed on a temporary, intermittent, or other basis 

14 which, if performed as an FSS controller, would not be 

15 creditable, for retirement purposes, by reason of section 

16 8347(g) or 8402(c) of title 5, United States Code, or any 

17 other similar provision of law, as determined by the Office 

18 of Personnel Management. 

19 (b) ELECTION.—Any individual to whom this Act ap20 plies may, within such period of time (not less than 12 

21 months in duration) and otherwise in such manner as the 

22 Office of Personnel Management shall by regulation pre23 scribe, make an election under this section. 

24 (c) EFFECT OF AN ELECTION.—An individual mak25 ing an election under this section shall be entitled— 


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1 (1) with respect to qualified service performed 

2 by such individual during the period beginning on 

3 February 1, 2005, and ending on the effective date 

4 of such election— 

5 (A) to have such service treated in the 

6 same manner as if it had been performed as an 

7 FSS controller for purposes of— 

8 (i) any determination of eligibility for 

9 immediate retirement under section 

10 8336(e) or 8412(e) of title 5, United 

11 States Code, or under section 5; and 

12 (ii) any computation of annuity 

13 under— 

14 (I) the provisions of section 

15 8339(e), or subsection (d) or (e) of 

16 section 8415 of title 5, United States 

17 Code; or 

18 (II) any of the provisions re19 ferred to in subclause (I), applied in 

20 accordance with section 5; except that 

21 (B) no compensation received for service 

22 performed during such period may be taken 

23 into account for purposes of any determination 

24 of such individual’s average pay; and 


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1 (2) with respect to qualified service performed 

2 by such individual after the effective date of such 

3 election— 

4 (A) to have such service treated in the 

5 same manner as if it had been performed as an 

6 FSS controller for purposes of— 

7 (i) any determination of eligibility for 

8 immediate retirement under section 

9 8336(e) or 8412(e) of title 5, United 

10 States Code, or under section 5; and 

11 (ii) any computation of annuity 

12 under— 

13 (I) the provisions of section 

14 8339(e), or subsection (d) or (e) of 

15 section 8415 of title 5, United States 

16 Code; or 

17 (II) any of the provisions re18 ferred to in subclause (I), applied in 

19 accordance with section 5, and 

20 (B) to have basic pay received by such in21 dividual for such service (not to exceed the 

22 amount determined applying the rate of basic 

23 pay last received by the individual while serving 

24 as an FSS controller before the date of such 

25 election) treated in the same manner as if it 


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1 were basic pay received for service performed as 

2 an FSS controller, for purposes of any deter3 mination of such individual’s average pay, 

4 subject to subsection (d). 

5 (d) EMPLOYEE CONTRIBUTIONS REQUIRED FOR

6 POST-ELECTION SERVICE.— 

7 (1) IN GENERAL.—The provisions of subsection 

8 (c)(2) shall not apply unless, as part of the election 

9 made by the individual under this section, such indi10 vidual agrees to make contributions to the Civil 

11 Service Retirement and Disability Fund in conform12 ance with the requirements of this subsection. 

13 (2) REQUIREMENTS RELATING TO QUALIFIED

14 SERVICE OTHERWISE SUBJECT TO A GOVERNMENT

15 RETIREMENT SYSTEM.—Under this subsection, in 

16 the case of any qualified service performed by an in17 dividual in a Government position (other than an 

18 FSS controller position) on the basis of which such 

19 individual is subject to a Government retirement sys20 tem, the employee contribution shall be determined 

21 based on— 

22 (A) the basic pay actually received by such 

23 individual for such service (determined in a 

24 manner consistent with the limitation specified 


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1 in the parenthetical matter contained in sub2 section (c)(2)(B)); and 

3 (B) the percentage contribution which 

4 would be required if the individual were serving 

5 in an FSS controller position. 

6 (3) REQUIREMENTS RELATING TO QUALIFIED

7 SERVICE NOT OTHERWISE SUBJECT TO ANY GOV8 ERNMENT RETIREMENT SYSTEM.—Under this sub9 section, in the case of any qualified service which is 

10 not covered by paragraph (2), the electing individual 

11 shall pay currently into the Civil Service Retirement 

12 and Disability Fund, in accordance with arrange13 ments acceptable to the Office of Personnel Manage14 ment, the employee contributions which would be de15 termined, under applicable provisions of subchapter 

16 III of chapter 83, or of chapter 84, of title 5, United 

17 States Code, as the case may be, based on— 

18 (A) the basic pay actually received by such 

19 individual for such service (determined in a 

20 manner consistent with the limitation specified 

21 in the parenthetical matter contained in sub22 section (c)(2)(B)); and 

23 (B) the percentage contribution which 

24 would be required if the individual were serving 

25 in an FSS controller position, 


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1 treating the pay received by such individual for such 

2 service as if it were basic pay within the meaning of 

3 subchapter III of chapter 83, or of chapter 84, of 

4 title 5, United States Code (whichever Government 

5 retirement system applied at the time of the individ6 ual’s separation described in section 3(a)(1)(A) or 

7 reassignment or transfer described in section 

8 3(a)(1)(B), as the case may be). 

9 (e) GOVERNMENT CONTRIBUTIONS.—Nothing in this 

10 section shall be considered— 

11 (1) to affect the amount of any contributions 

12 which (but for this Act) would otherwise be payable 

13 by an employing Governmental entity under section 

14 8334 or 8423 of title 5, United States Code, with 

15 respect to any Government service actually per16 formed by such employee during any period of time 

17 to which subsection (c)(1) or (c)(2) applies; or 

18 (2) to create any obligation on the part of any 

19 non-Governmental entity to make any employer con20 tributions to the Civil Service Retirement and Dis21 ability Fund with respect to any service performed 

22 during any period of time to which either subsection 

23 (c)(1) or subsection (c)(2) applies. 


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1 SEC. 5. SPECIAL RULE RELATING TO IMMEDIATE RETIRE2 MENT. 

3 (a) IN GENERAL.—In the case of an individual who 

4 makes an election under section 4, any determination of 

5 eligibility for or the amount of any annuity to which such 

6 individual is entitled under subchapter III of chapter 83 

7 or under chapter 84 of title 5, United States Code, shall 

8 be made in accordance with the provisions of law that 

9 would otherwise apply, subject to the following: 

10 (1) In addition to any other combination of age 

11 and service for entitlement to an immediate annuity 

12 which might otherwise apply, any such individual is 

13 entitled to an immediate annuity— 

14 (A) if the individual is an individual who, 

15 as of the effective date of such individual’s elec16 tion under section 4, is not performing service 

17 which is subject to a Government retirement 

18 system, beginning on the later of— 

19 (i) the last day of the month in which 

20 such individual attains 56 years of age; or 

21 (ii) the effective date of such election; 

22 except if the individual has become (and as of 

23 the date specified in clause (i) or (ii), whichever 

24 would otherwise apply, remains) a Government 

25 employee subject to a Government retirement 

26 system, in which case entitlement commences 


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1 on the date described in subparagraph (B)(ii); 

2 or 

3 (B) if the individual is an individual who 

4 is not covered by subparagraph (A), beginning 

5 on the later of— 

6 (i) the last day of the month in which 

7 such individual attains 56 years of age; or 

8 (ii) the date on which such individual 

9 separates from Government service or 

10 transfers to a position which is not subject 

11 to a Government retirement system. 

12 (2) The annuity of a former FSS controller who 

13 becomes entitled to an immediate annuity pursuant 

14 to this subsection shall, under regulations prescribed 

15 by the Office of Personnel Management, be com16 puted— 

17 (A) with respect to service subject to sub18 chapter III of chapter 83 of title 5, United 

19 States Code, in the same manner as would 

20 apply under section 8339(e) of such title if such 

21 controller had retired under section 8336(e) of 

22 such title; and 

23 (B) with respect to service subject to chap24 ter 84 of title 5, United States Code— 


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1 (i) in the same manner as would apply 

2 under section 8415(d) of such title if such 

3 controller had retired under section 

4 8412(e) of such title; except that 

5 (ii) the total service used in com6 puting such annuity may not exceed— 

7 (I) the total service that would 

8 (but for this Act) otherwise have been 

9 used; plus 

10 (II) any qualified service which is 

11 creditable for that purpose by reason 

12 of section 4. 

13 (3) The average pay used in any computation 

14 under paragraph (2) shall be determined in accord15 ance with the provisions of law that (disregarding 

16 this Act) would otherwise apply, subject to para17 graphs (1)(B) and (2)(B) of section 4(c). 

18 (4) In the case of an individual described in 

19 paragraph (1)(A), such individual shall, for purposes 

20 of any determination of eligibility for an annuity 

21 under subchapter III of chapter 83 of title 5, United 

22 States Code, by reason of this subsection, be consid23 ered to have satisfied the requirement of section 

24 8333(b) of such title if such individual would have 

25 satisfied such requirement had such individual sepaVerDate Nov 24 2008 19:14 Apr 23, 2010 Jkt 089200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H5115.IH H5115

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1 rated from service on the date of such individual’s 

2 separation under section 3(a)(1)(A) or reassignment 

3 or transfer under section 3(a)(1)(B), as the case 

4 may be. 

5 (b) FEHBP.—In the case of an individual who be6 comes entitled to an immediate annuity by reason of sub7 section (a), the condition for continued enrollment in a 

8 health benefits plan under section 8905(b) of title 5, 

9 United States Code, shall be considered met if— 

10 (1) in the case of an individual whose entitle11 ment arises pursuant to a separation from Govern12 ment service (including a reassignment or transfer 

13 to a position in which such individual ceases to be 

14 subject to a Government retirement system), such 

15 condition is met by such individual either— 

16 (A) at the time of separation; or 

17 (B) at the time of such individual’s separa18 tion (as described in section 3(a)(1)(A)) or re19 assignment or transfer (as described in section 

20 3(a)(1)(B)); or 

21 (2) in the case of an individual whose entitle22 ment arises in a manner other than as described in 

23 paragraph (1), such condition is met by such indi24 vidual at the time described in paragraph (1)(B). 


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1 An individual who becomes eligible for continued enroll2 ment in a health benefits plan by reason of this subsection 

3 may do so by filing an application at the time and under 

4 the conditions prescribed by the Office of Personnel Man5 agement in regulations. Continued enrollment under this 

6 subsection shall be implemented based on the individual’s 

7 enrollment as of the time specified in paragraph (1) or 

8 (2), as the case may be, except that nothing in this sub9 section shall be considered to allow coverage to be obtained 

10 for any goods or services received, or to require that any 

11 individual or Government contributions for coverage be 

12 made with respect to any period ending, before the date 

13 on which the individual enrolls in a health benefits plan 

14 under the preceding sentence. 

15 SEC. 6. PROVISIONS RELATING TO ANNUITANTS. 

16 (a) IN GENERAL.—The annuity of any individual who 

17 is excluded from the application of the preceding provi18 sions of this Act by reason of section 3(b)(1) shall, upon 

19 application filed by such individual within the time and 

20 in the manner prescribed under section 4(b), be recom21 puted, effective with respect to amounts accruing for 

22 months beginning on or after the date of such application, 

23 so that the amount of such annuity is equal to the amount 

24 that would then be payable if— 


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1 (1) any qualified service performed by such in2 dividual during the period beginning on February 1, 

3 2005, and ending on the effective date of the appli4 cation had been credited under subchapter III of 

5 chapter 83 of title 5, United States Code, or chapter 

6 84 of such title, as the case may be, as if FSS con7 troller service; 

8 (2) such individual had separated from service 

9 on the latest of— 

10 (A) the separation date on which such in11 dividual’s annuity would otherwise be based; 

12 (B) the effective date of the application; or 

13 (C) the last day of qualified service per14 formed by such individual, if earlier than the 

15 date under subparagraph (B); and 

16 (3) as of the separation date determined under 

17 paragraph (2), such individual was entitled to— 

18 (A) retire under section 8336(e) of title 5, 

19 United States Code, and computation of annu20 ity under section 8339(e) of such title; or 

21 (B) retire under section 8412(e) of title 5, 

22 United States Code, and computation of annu23 ity under section 8415(d) of such title, 

24 as the case may be, subject to the condition specified 

25 in section 4(c)(1)(B). 


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1 (b) SURVIVORS.—In the case of an individual eligible 

2 to submit an application under subsection (a) who dies 

3 before the end of the period allowable under section 4(b), 

4 an application under this section may, for purposes of any 

5 survivor annuity, be made— 

6 (1) by a survivor of the individual; and 

7 (2) if submitted by— 

8 (A) the deadline that would apply under 

9 subsection (a); or 

10 (B) if later, the date occurring 12 months 

11 after the individual’s date of death. 

12 (c) DEFINITION.—For purposes of subsection (b), the 

13 term ‘‘effective date of the application’’ means the first 

14 day of the first month beginning on or after the date on 

15 which such application is duly filed. 

16 SEC. 7. REGULATIONS. 

17 The Office of Personnel Management may prescribe 

18 any regulations necessary to carry out this Act, including 

19 provisions for determining ‘‘basic pay’’ in connection with 

20 service performed for a non-Government entity. 

Æ 


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