[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31823]
[Federal Register: December 28, 1994]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 838
RIN: 3206-AG42
Child Abuse Accountability Act Implementation
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 interim
regulations to implement the Child Abuse Accountability Act. The Act
requires OPM to comply with certain court orders for the enforcement of
a judgment rendered against an employee or retiree for physical,
sexual, or emotional abuse of a child. These regulations are necessary
to establish procedures under which OPM will receive and process court
orders, determine the amounts available to satisfy a court order, and
make payments under the Act.
DATES: Interim rules effective October 14, 1994; comments must be
received on or before February 27, 1995.
ADDRESSES: Send comments to Reginald M. Jones, Jr., Assistant Director
for Retirement Policy Development; Retirement and Insurance Group;
Office of Personnel Management; P.O. Box 57; Washington, DC 20044; or
deliver to OPM, room 4351, 1900 E Street, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Harold L. Siegelman, (202) 606-0299.
SUPPLEMENTARY INFORMATION: On October 14, 1994, the President approved
the Child Abuse Accountability Act, Pub. L. 103-358. The Act requires
OPM, as the administrator of the Civil Service Retirement System and
basic benefits under the Federal Employees Retirement System, to comply
with certain court orders for the enforcement of judgments rendered
against employees or retirees for physical, sexual, or emotional abuse
of a child. The Act was effective on October 14, 1994, and applies to
court orders that OPM receives on or after that date. To implement the
Act, we are issuing interim regulations to establish procedures for
claimants to apply for benefits and for OPM to process claims under the
Act.
These regulations apply only to benefits that OPM administers. The
provisions of the Act relating to the Thrift Savings Plan are
administered by the Federal Retirement Thrift Investment Board, an
independent agency, and these regulations and the following discussion
do not apply to such benefits.
1. Benefits affected by the Child Abuse Accountability Act
The statutory language places certain conditions on the
availability of funds to comply with a court order. An analysis of the
statutory language demonstrates that the Act covers only employee
annuities and refunds of retirement contributions that are available
for immediate payment.
The Act applies only to ``Payments . . . which would otherwise be
made,'' that is, payments for which the employee or retiree is
immediately eligible. The statutory eligibility requirements that an
employee must satisfy to be eligible for immediate payment include
separation from the Federal service and application by the employee for
payment, in addition to satisfaction of the specific statutory
requirements that permit payment of a particular benefit. Money held by
an employing agency or OPM that may be payable at some future date is
not available for payment under court orders.
The Act applies only to ``Payments . . . to an employee . . . or
annuitant based on service of that individual.'' This language contains
three limitations.
Only benefits to employees or annuitants are covered. Transfers of
contributions between retirement systems are excluded because they are
not payable to an employee or annuitant.
Only benefits based on service are covered. Payments based on
voluntary contributions and refunds of excess contributions (which are
deemed to be voluntary contributions at retirement) are excluded
because such payments are not based on service.
Only benefits payable to the individual who performed the service
that provides the basis for the benefit are covered. Death benefits are
excluded by this language because, although they may be payable to an
``annuitant,'' they are based on the service of the deceased
individual, not the individual who is entitled to payment.
2. Garnishment procedures under part 581 apply
We apply the procedures established in subparts A through J of part
838 of Title 5, Code of Federal Regulations, to former spouse court
orders. We apply the procedures established in part 581 of Title 5,
Code of Federal Regulations, to garnishment orders for alimony and
child support. Both the process that State authorities will follow and
the varied form of orders that OPM will receive for child abuse
judgment enforcement orders will be more like garnishment orders under
part 581 than former spouse court orders under part 838.
The process applicable to child abuse judgment enforcement orders
and garnishment orders for alimony and child support have several
common elements. Both are dependent on enforcement procedures
established by the State and subject to limitations that the State
places on actions in the nature of garnishments. Both may be
administrative orders, rather than court orders, if the State provides
such a procedure. Former spouse court orders differ in both of these
aspects.
In addition, all child abuse judgment enforcement orders are to
collect amounts that have already been reduced to judgment. Although
many garnishment orders are for current support obligations, many
garnishment orders are to collect amounts past due. All former spouse
court orders are treated as applying to current obligations. (See 5 CFR
838.234 requiring a temporary adjustment of the amount payable to a
former spouse to satisfy an arrearage.)
Procedures applicable to actions in the nature of garnishment vary
substantially among the States. Therefore, the types of documents that
we will receive and procedures that we must follow for child abuse
judgment enforcement orders will vary from State to State, like the
documentation and procedures applicable to garnishments for alimony and
child support. For example, some States require us to report the amount
available for garnishment, and after we respond, they issue another
order providing payment instructions. Others provide payment
instructions in the first order. Therefore, our garnishment procedures
are better suited to these variations than our procedures for former
spouse benefits.
3. Section analysis
The amendment to section 838.101 of Title 5, Code of Federal
Regulations, states that Subpart K applies to all child abuse judgment
enforcement orders received on or after the effective date of the Child
Abuse Accountability Act. OPM is not authorized to comply with child
abuse judgment enforcement orders received before that date.
The amendment to section 838.102 of Title 5, Code of Federal
Regulations, provides users of Title 5, Code of Federal Regulations, a
cross reference to the regulation implementing the Child Abuse
Accountability Act. This is intended to make the regulations easier to
use.
The amendments to section 838.103 of Title 5, Code of Federal
Regulations, adds definitions for two new terms, ``child abuse debtor''
and ``child abuse judgment enforcement order'' to describe the person
entitled to benefits and the court or administrative order under the
Child Abuse Accountability Act. The change in the definition of the
term ``net annuity'' establishes that amounts already payable under a
former spouse court order or a child abuse judgment enforcement order
are not part of the ``net annuity'' that is available to satisfy
additional orders that we receive later.
Subpart K establishes procedures and requirements for child abuse
judgment enforcement orders. Section 838.1101 states the purpose and
scope of the subpart.
Section 838.1111 restates the statutory rules concerning when funds
are available for payment.
Section 838.1121 provides that the part 581 procedures apply to
child abuse judgment enforcement orders as discussed under item 2 of
this supplementary information. Paragraph (b) repeats the rule under
part 581 that we must comply with any order that appears valid on its
face. The Supreme Court has upheld this limitation under the part 581
regulations in the case of Morton v. United States, 467 U.S. 822
(1984). Paragraph (c) provides a cross reference to the address at
which OPM receives all orders affecting retirement benefits. This is
the only correct address for service of process concerning child abuse
judgment enforcement orders.
The table of amendments makes several conforming changes to
existing regulations in Subpart A of part 838 so that the regulatory
language in those sections includes references to the individuals and
orders subject to the new subpart K.
4. 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 regulations are effective on October 14, 1994, the
effective date of the statutory change. The statute requires OPM to
honor court orders received on or after the date of enactment. Delaying
the processing of court orders for publication of a general notice of
proposed rulemaking or the normal 30-day delay in effective date would
be contrary to the public interest and the intent of the statute.
Although later adjustments could be retroactive, such adjustments could
seriously harm entitled persons with an immediate need for payment.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 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 Federal employees and agencies and retirement payments
to retired Government employees and their survivors.
List of Subjects in 5 CFR Part 838
Administrative practice and procedure, Claims, Disability benefits,
Government employees, Income taxes, Pensions, Retirement, Courts.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending 5 CFR part 838, as follows:
PART 838--COURT ORDERS AFFECTING RETIREMENT BENEFITS
1. The authority citation for part 838 is revised to read as
follows:
Authority: 5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E, J,
and K also issued under 5 U.S.C. 8345(j)(2) and 8467(b). Sections
838.221, 838.422, and 838.721 also issued under 5 U.S.C. 8347(b).
Subpart A--General Provisions
2. In section 838.101, paragraph (c)(3) is added to read as
follows:
Sec. 838.101 Purpose and scope.
* * * * *
(c) * * *
(3) Subpart K of this part applies only to court orders received by
OPM on or after October 14, 1994.
* * * * *
3. In section 838.102, paragraph (a)(7) is added to read as
follows:
Sec. 838.102 Regulatory structure.
(a) * * *
(7) Subpart K of this part contains rules applicable to court
orders for the enforcement of judgments rendered against employees or
annuitants for physical, sexual, or emotional abuse of a child.
4. Section 838.103 is amended by adding in alphabetical order a
definition of the terms ``child abuse creditor,'' and ``child abuse
judgment enforcement order,'' and by revising the definition of the
term ``net annuity'' to read as follows:
Sec. 838.103 Definitions.
Child abuse creditor means an individual who applies for benefits
under CSRS or FERS based on a child abuse judgment enforcement order.
Child abuse judgment enforcement order means a court or
administrative order requiring OPM to pay a portion of an employee
annuity or a refund of employee contributions to a child abuse creditor
as a means of collection of a ``judgment rendered for physically,
sexually, or emotionally abusing a child'' as defined in sections
8345(j)(3)(B) and 8467(c)(2) of title 5, United States Code.
* * * * *
Net annuity means the amount of monthly annuity payable after
deducting from the gross annuity any amounts that are--
(1) Owed by the retiree to the United States;
(2) Deducted for health benefits premiums under section 8906 of
title 5, United States Code, and Secs. 891.401 and 891.402 of this
chapter;
(3) Deducted for life insurance premiums under section 8714a(d) of
title 5, United States Code;
(4) Deducted for Medicare premiums;
(5) Properly withheld for Federal income tax purposes, if the
amounts withheld are not greater than they would be if the retiree
claimed all dependents to which he or she was entitled;
(6) Properly withheld for State income tax purposes, if the amounts
withheld are not greater than they would be if the retiree claimed all
dependents to which he or she was entitled; or
(7) Already payable to another person based on a court order
acceptable for processing or a child abuse judgment enforcement order.
Unless the court order expressly provides otherwise, net annuity also
includes any lump-sum payments made to the retiree under section 8343a
or section 8420a of title 5, United States Code.
* * * * *
5. Subpart K is added to read as follows:
Subpart K--Court Orders Under the Child Abuse Accountability Act
Sec.
Regulatory Structure
838.1101 Purpose and scope.
Availability of Funds
838.1111 Amounts subject to child abuse judgment enforcement
orders.
Application, Processing, and Payment Procedures and Documentation
Requirements
838.1121 Procedures and requirements.
Subpart K--Court Orders Under the Child Abuse Accountability Act
Regulatory Structure
Sec. 838.1101 Purpose and scope.
(a) This subpart regulates the procedures that the Office of
Personnel Management will follow upon the receipt of claims arising out
of child abuse judgment enforcement orders.
(b) This subpart prescribes--
(1) The circumstances that must occur before employee annuities or
refunds of employee contributions are available to satisfy a child
abuse judgment enforcement order; and
(2) The procedures that a child abuse creditor must follow when
applying for a portion of an employee annuity or refund of employee
contributions based on a child abuse judgment enforcement order.
Availability of Funds
Sec. 838.1111 Amounts subject to child abuse judgment enforcement
orders.
(a)(1) Employee annuities and refunds of employee contributions are
subject to child abuse enforcement orders only if all of the conditions
necessary for payment of the employee annuity or refund of employee
contributions to the former employee have been met, including, but not
limited to--
(i) Separation from the Federal service;
(ii) Application for payment of the employee annuity or refund of
employee contributions by the former employee; and
(iii) Immediate entitlement to an employee annuity or refund of
employee contributions.
(2) Money held by an employing agency or OPM that may be payable at
some future date is not available for payment under child abuse
judgment enforcement orders.
(3) OPM cannot pay a child abuse creditor a portion of an employee
annuity before the employee annuity begins to accrue.
(b) Waivers of employee annuity payments under the terms of section
8345(d) or section 8465(a) of title 5, United States Code, exclude the
waived portion of the annuity from availability for payment under a
child abuse judgment enforcement order if such waivers are postmarked
or received before the date that OPM receives the child abuse judgment
enforcement order.
Application, Processing, and Payment Procedures and Documentation
Requirements
Sec. 838.1121 Procedures and requirements.
(a) Except as otherwise expressly provided in this part, the
procedures and requirements applicable to legal process under part 581
of this chapter apply to OPM's administration of child abuse judgment
enforcement orders.
(b)(1) OPM will accept for processing any legal process under part
581 of this chapter that appears valid on its face.
(2)(i) After OPM has determined that a child abuse judgment
enforcement order is valid on its face, OPM will not entertain any
complaint concerning the validity of the order. Such complaints must be
presented to authorities having jurisdiction to review the validity of
the legal process.
(ii) OPM will not delay compliance with a child abuse judgment
enforcement order based on any complaint concerning the validity of the
order unless instructed to do so by an appropriate authority under the
law of the jurisdiction issuing the legal process, the office of the
United States Attorney for the jurisdiction issuing the legal process,
or the U.S. Department of Justice.
(c)(1) The address for service of a child abuse judgment
enforcement order is provided in appendix A to subpart A of this part.
(2)(i) OPM considers service of legal process by mailing or
delivery of the child abuse judgment enforcement order to the
designated address appropriate service notwithstanding more formal
requirements imposed on creditors under State law.
(ii) OPM will execute forms required under a State procedure to
waive any right to more formal procedures for service of legal process
than specified in paragraph (c)(2)(i) of this section.
Secs. 838.101, 838.122, 838.131, 838.134 [Amended]
7. In the list below, for each section and paragraph indicated in
the left two columns, remove the material indicated in the third column
where it appears in the paragraph, and add the material indicated in
the fourth column:
------------------------------------------------------------------------
Section Paragraph Remove Add
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838.101... (b)(2)... spouse.................. spouse or child abuse
creditor
838.101... (b)(3)... spouse.................. spouse or child abuse
creditor
838.122... (b)...... spouses................. spouses or child abuse
creditors
838.122... (e)...... spouse.................. spouse or child abuse
creditor
838.131... (b)(2)... spouse.................. spouse or child abuse
creditor
838.132... (b)...... spouse.................. spouse or child abuse
creditor
838.134... (a)(1)... affect.................. relate to
838.134... (a)(1)... former spou-ses......... individuals (former
spouses or child abuse
creditors)
838.134... (a)(1)... issued.................. received by OPM
838.134... (a)(2)... spouse or separated spouse, separated
Pspouse. spouse, or child abuse
creditor
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[FR Doc. 94-31823 Filed 12-27-94; 8:45 am]
BILLING CODE 6325-01-M
