Title 4—ADMINISTRATION STATE EMPLOYEES' RETIREMENT BOARD [ 4 PA. CODE CH. 247 ] Priority of Taxation, Attachment and Assignment of Funds [40 Pa.B. 4926]
[Saturday, August 28, 2010]The State Employees' Retirement Board (Board) adds § 247.11 (relating to priority of forfeitures, attachments and assignments of funds) to read as set forth in Annex A.
A. Effective Date
The final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.
B. Contact Person
For further information, contact Robert Gentzel, Director of Communications and Policy, State Employees' Retirement System, 30 North Third Street, Suite 150, Harrisburg, PA 17101-1716, (717) 787-9657; or Brian E. McDonough, Deputy Chief Counsel, State Employees' Retirement System, 30 North Third Street, Suite 150, Harrisburg, PA 17101-1716, (717) 783-7317.
C. Statutory Authority
This final-form rulemaking is being made under the authority of 71 Pa.C.S. §§ 5902(h) and 5953 (relating to administrative duties of the board; and taxation, attachment and assignment of funds).
D. Background and Purpose
This final-form rulemaking sets priorities among conflicting demands on forfeiture, attachments and assignments of members' retirement benefits authorized by 71 Pa.C.S. Part XXV (relating to State Employees' Retirement Code). A court decision has offered partial guidance in this area. The final-form rulemaking will enable consistent application of the statute and could avoid litigation of priority issues.
E. Summary of Comments and Responses
Comments were received from the Independent Regulatory Review Commission (IRRC) regarding this rulemaking. The comments are mooted by revisions in the final rulemaking.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the regulation.
Benefits
The final-form rulemaking is intended to alleviate confusion and prevent possible disputes with regard to conflicting demands upon members' retirement benefits.
Costs
There are no costs to the Commonwealth, its citizens or State employees associated with this final-form rulemaking.
Compliance costs
The final-form rulemaking is not expected to impose additional compliance costs on State employees.
G. Sunset Review
A sunset review is not applicable.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 18, 2008, the Board submitted a copy of the notice of proposed rulemaking, published at 38 Pa.B. 2062 (May 3, 2008), to IRRC and to the House State Government Committee and the Senate Finance Committee (Committees) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on July 14, 2010, the final-form rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 15, 2010, and approved the final-form rulemaking.
I. Findings
The Board finds that:
(1) Public notice of intention to adopt this regulation was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) The final-form rulemaking is necessary and appropriate for the administration of 71 Pa.C.S. Part XXV.
J. Order
The Board, acting under 71 Pa.C.S. § 5902(h), orders that:
(a) The regulations of the Board, 4 Pa. Code Chapter 247, are amended by adding § 247.11 to read as set forth in Annex A.
(b) The final-form rulemaking shall be submitted to the Office of Attorney General for approval as to legality as required by law.
(c) The Secretary of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
NICHOLAS J. MAIALE,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 4359 (July 31, 2010).)
Fiscal Note: Fiscal Note 31-7 remains valid for the final adoption of the subject regulations.
Annex A TITLE 4. ADMINISTRATION PART X. STATE EMPLOYEES' RETIREMENT BOARD CHAPTER 247. BENEFITS § 247.11. Priority of forfeitures, attachments and assignments of funds.
(a) The right of a person to any benefit or right accrued or accruing under the code, as amended from time to time, and the moneys in the fund are subject to prior payment or forfeiture of rights, as set forth in section 5953 of the code (relating to taxation, attachment and assignment of funds), in the following sequential priority to the extent the forfeitures and competing claims exist at the time the distribution is made as determined by the Board consistent with applicable law:
(1) For pension forfeitures, fines and restitution as provided under the Public Employee Pension Forfeiture Act (43 P. S. §§ 1311—1315), as amended from time to time, or under Pa.Const. Art. V, § 16(b).
(2) To the employer after certification by the head of the employer of the amount that the member is obligated to pay, and after review and approval by the employer's legal representative or upon receipt of an assignment from the member in the amount so certified.
(3) To an alternate payee or attaching authority as set forth in an approved domestic relations order, order for support, or order for the enforcement of arrearages as described in section 5953.1 of the code (relating to approval of domestic relations orders).
(4) To the member directly or to an eligible retirement plan by way of an eligible rollover distribution.
(b) Payments from a member's retirement benefits under subsection (a)(2) shall first be made from the entire accumulated deductions then standing to the credit of the member upon entering pay status. The remaining balance, if any, of payments due under subsection (a)(2) and payments due under subsection (a)(3) for orders for support or orders for the enforcement of arrearages, or both, shall be paid out of the monthly annuity payable to or on behalf of the member at the rate of up to 50% (as determined by the System consistent with applicable law) of the gross monthly annuity until paid in full. The amount payable under subsection (a)(3) pursuant to an approved domestic relations order may be paid out of the monthly annuity paid to or on behalf of the member at the rate of up to 100% (as determined by the System consistent with applicable law) of the member's remaining monthly annuity until paid in full. Unpaid amounts remaining after termination of an annuity paid to or on behalf of the member or, after the death of the member prior to receiving an annuity, shall be paid out of the remaining initial present value then standing to the credit of the member, if any.
[Pa.B. Doc. No. 10-1581. Filed for public inspection August 27, 2010, 9:00 a.m.]
