[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          
------------------------------------------------------------------------
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