Regulation on Transfer Between Systems and Permanence in the Public Pension System

DE No. 9/1998
DECRETO No. 9/1998
REGULATION ON TRANSFER BETWEEN SYSTEMS AND PERMANENCE IN THE PUBLIC PENSION SYSTEM Approval: 21/01/1998 Validity: 07/02/1998

DECRETO No. 9
THE PRESIDENT OF THE REPUBLIC OF EL SALVADOR,
CONSIDERING:
I.- That Arts. 184 and 186 of the Law on the Pension Savings System establish the conditions for the transfer of insured persons from the Salvadoran Institute of Social Security or the National Institute of Pensions for Public Employees to the Pension Savings System. II.- That Art. 6, letter e) of the Organic Law of the Superintendency of Pensions establishes as a function of the Superintendency of Pensions to coordinate and supervise the process of transferring insured persons from the Public Pension System to the Pension Savings System and to homogenize the application formats for permanence in the Salvadoran Institute of Social Security or the National Institute of Pensions for Public Employees; and, III.- That for this purpose it is necessary to have the respective regulation containing the basic provisions to regulate the transfer of insured persons from the Public Pension System to the Pension Savings System; THEREFORE, in exercise of its constitutional powers, DECREEs the following:

REGULATION ON TRANSFER BETWEEN SYSTEMS AND PERMANENCE IN THE PUBLIC PENSION SYSTEM

CHAPTER I
GENERALITIES AND DESIGNATIONS
Object and Designations
Art. 1.- The object of this Regulation is to regulate the transfer of workers from the Public Pension System to the Pension Savings System and their permanence therein.
Art. 2.- In the text of this regulation, the following designations will be used:
a) Law; by Law on the Pension Savings System b) Superintendency, by Superintendency of Pensions. c) INPEP, by National Institute of Pensions for Public Employees; d) ISSS, by Salvadoran Institute of Social Security; e) SPP, by Public Pension System, which includes the ISSS and the INPEP; f) SAP, by Pension Savings System. g) AFP, by Institution Administrator of Pension Funds h) Pension Institutions, ISSS, INPEP or both i) Application, by Application for Permanence in the SPP j) NUP; by Unique Pension Number k) IVM; by Disability, old age and death Unique Pension Number Art. 3.- The NUP is the Unique Pension Number with which each worker affiliated with the SPP or incorporated into the SAP will be identified. This number will be assigned by the Superintendency once the worker has requested their permanence and it is appropriate. It will remain unchanged throughout the worker's life and while beneficiaries exist. Likewise, it constitutes the identifier link between the affiliated worker and the Pension System in which they are located; this number must be presented for any procedure that the worker carries out within the SPP or the SAP.

CHAPTER II
ON MANDATORY PERMANENCE
Art. 4.- Insured persons in the ISSS or in the INPEP who, at the time the SAP enters into operation, have reached fifty-five years of age or more, men, and fifty years of age or more women, will automatically remain affiliated in the SPP. If they are private sector employees, they will remain affiliated in the ISSS and if they are public or municipal sector employees, in the INPEP. Art. 5.- Workers insured in any of the Pension Institutions, who according to what is provided in the Law and its Regulations, must remain affiliated with the SPP, shall not fill out an Application to make their permanence effective; this will be automatic according to what is specified in this Regulation. Art. 6.- The mandatory nature of permanence in the SPP applies to all insured persons indicated in Art. 4 of this regulation, regardless of whether they are contributing or not on the date of entry into operation of the SAP. Art. 7.- The Pension Institutions must send to the Superintendency, by the means determined by it through instructions, within a period of thirty business days counted from the date of entry into operation of the SAP, the list of insured persons who are within the age range established by the Law, for mandatory permanence in the SPP. Art. 8.- Once the information referred to in the previous article is received, the Superintendency will have a period of 10 business days to assign the NUP to all those insured persons in whom mandatory permanence is applicable. Likewise, the Superintendency must send within the same period the list of those insured persons to whom mandatory permanence in the SPP will not be applied, explaining the causes.

CHAPTER III
ON TRANSFER TO THE SAP
Mandatory transfer to the SAP
Art. 9.- All those persons insured in the ISSS or in the INPEP, who on the date of entry into operation of the SAP, are less than thirty-six years old, will be obliged to incorporate into the latter, by signing the affiliation contract with an AFP.
Art. 10.- From the date of start of operations of the SAP, publicly announced by the Superintendency, the ISSS and the INPEP cannot carry out affiliations to the IVM programs they administer.
Voluntary transfer to the SAP
Art. 11.- When a worker affiliated with any of the Pension Institutions voluntarily transfers to the SAP, in order to make their incorporation into it effective, they must sign an affiliation contract with an AFP, in accordance with what is established in the Affiliation Regulation. Art. 12.- Once their incorporation into the SAP is confirmed by the Superintendency, it must communicate this to the ISSS or the INPEP or to both depending on the case, within a period not exceeding three business days, in order for the Pension Institutions to update their corresponding databases. Art. 13.- The date on which the ISSS or the INPEP or both cease to receive contributions from workers is the first day of the month following the accrual month, specified in the corresponding Regulation. In any case, contributions will cease to be received in the SPP the month following that in which the Superintendency confirms to the AFP and the corresponding Pension Institution the incorporation of the worker into the SAP.

CHAPTER IV
ON VOLUNTARY PERMANENCE IN THE SPP
Art. 14.- Insured persons in the SPP who have completed thirty-six years of age and are less than fifty-five years of age, men, and less than fifty years of age, women, on the date of entry into operation of the SAP, may opt to remain affiliated with the SPP or to incorporate into the SAP. To do so, they must manifest their desire for permanence in the SPP, within a period of six months, counted from the date the SAP enters into operation. The preceding paragraph also applies to insured persons in the ISSS or INPEP who are not contributing. If they do not manifest their desire for permanence, upon re-entering subordinate employment work, they must incorporate into the SAP, in accordance with what is established in Art. 184 of the Law and its regulations. Application for Permanence in the SPP Art. 15.- Permanence in the SPP is materialized with the signing of the Application for Permanence, which becomes effective with the granting of the NUP by the Superintendency. The format of the application will be that established by the Superintendency in the respective instructions. Art. 16.- To apply for permanence in the SPP, the affiliate must fill out, sign, and present the Application to the institution where they last contributed. This form will be available in the administrative offices of the ISSS and INPEP. Art. 17.- The aforementioned Application must be presented in original and two copies, on each of which the recipient will be noted. The original will remain in the possession of the corresponding Institution; the first copy for the affiliate; and the second copy will be sent to their employer. Art. 18.- In the event that the affiliate has two or more employers, they will be obligated to deliver to each employer a copy of the Application presented at the corresponding Pension Institution, which must bear a stamp containing the legend "THIS DUPLICATE IS CONFORME WITH ITS ORIGINAL", and signature of the responsible person in the Pension Institution. Art. 19.- If the worker is contributing simultaneously to the ISSS and the INPEP, it will suffice that they present the Application in one of them. The receiving Institution must communicate this circumstance to the other institution, through the means established by the Superintendency. In any case, it must send a copy of the permanence application, in accordance with the prescription in the previous article, within a period not exceeding three business days. Art. 20.- The corresponding Pension Institution within a period not exceeding three business days of the Application being signed and presented, must send to the Superintendency, by the means it establishes, the list of workers who requested to remain affiliated in their IVM program, in order to obtain the NUP of each one. Once the information is received and verified, the Superintendency will have a period of three business days to assign the NUP and confirm that the permanence of the workers in the SPP proceeds. Art. 21.- In cases where the
Superintendency finds the application inappropriate, it will inform the corresponding Pension Institution, indicating the cause. For this, it will have a period of three business days from the receipt of the respective information. Art. 22.- Once the Superintendency assigns the NUP to the requesting workers, and this is communicated to the corresponding Pension Institution, the latter must register it in each application. From the day following the receipt of said NUP, it will deliver the copies of the application to their respective recipients, within the periods and modality established in the following articles. Art. 23.- The corresponding Pension Institution must communicate to the employer, once the NUP is received, the names of the workers to whom their voluntary permanence in the SPP has been granted, in order for the employer to continue making the respective payments. This transmission will be carried out biweekly. In the event that an affiliate of the ISSS moves to work in the public or municipal sector or an affiliate of the INPEP moves to work in the private sector, it will suffice for their new withholding agent to inform them and include in the corresponding payroll the NUP, name of the worker, and other pertinent data specified in the corresponding Regulation. Late Application for Permanence Art. 23-A.- When an insured person reaches the legal retirement age, becomes disabled, or dies, without having exercised their right to opt for one of the two pension systems; or when being an affiliate of an AFP, their affiliation contract is cancelled and it corresponds to reincorporate into the SPP, they must sign late an application for permanence in said System. Likewise, the Superintendency may authorize the signing of a late permanence application when, according to considerations expressed by the affiliate or beneficiary, it deems it appropriate. The format of the permanence applications filled out late will be in accordance with the specification determined by the Superintendency, through Instructions. The process of assigning the NUP of affiliates who sign late permanence applications will be defined starting from Art. 20 of this Regulation. [1]

CHAPTER V
ON REVOCATION OF APPLICATION FOR PERMANENCE IN THE SPP Art. 24.- A worker insured in the ISSS or in the INPEP who opts to remain affiliated in the SPP, may revoke their application for permanence and transfer to the SAP, during the period between the date of confirmation of the SPP permanence application and December 31, 1998, provided that on the date of transfer they are less than fifty-five years of age, for a male affiliate, and fifty years of age, for a female affiliate. Art. 25.- For the purposes of the previous article, it will suffice for the worker to sign an affiliation contract with an AFP. In it, it must be noted, in the space reserved for it, the existence of an application for permanence in the SPP and the NUP. For affiliation to an AFP, the procedure will be in accordance with what is stipulated in the Affiliation Regulation. Art. 26.- The revocation of permanence to the SPP takes effect at the moment the affiliation contract with the AFP enters into force, in accordance with what is established in the Affiliation Regulation. Art. 27.- Once affiliation to the AFP is confirmed, the Superintendency must inform the corresponding Pension Institutions, within a period of three business days, of the de-affiliation of the worker from the SPP in order for them to update the corresponding databases.

CHAPTER VI
ON AFFILIATE CLAIMS
Art. 28.- From the resolutions of the Superintendency, the affiliate may file an appeal for rectification within a period of three business days, counted from the day following the notification of the resolution.
Art. 29.- The corresponding Pension Institution, within a period not exceeding three business days after the claim application is signed, must send it to the Superintendency. Once said application is received, the Superintendency will have a period of three business days to resolve. Art. 30.- In the event that the filed appeal relates to the birth date of the affiliate and this affects mandatory permanence or transfer, the probative document must be the certification of the interested party's birth certificate issued by the competent authority.

CHAPTER VII
ON INVALIDATION OF THE APPLICATION FOR PERMANENCE Art. 31.- The causes to request the Superintendency to invalidate an application for permanence are:
a) Forgery of the worker's signature; b) When it was signed by a worker who, in accordance with the Law, is obliged to affiliate to the SAP; c) When the application for permanence was signed by a person who, due to their age, had no right to opt between Systems, in accordance with what is established in Art. 184 of the Law; d) By the incorporation of the worker into the SAP within the periods and forms established by the Law and other regulations affecting it; e) When the worker has filled out two or more applications for permanence, in which case the first will prevail; and, f) By proving that the signature corresponds to a non-existent person. The Superintendency may invalidate ex officio an application for permanence in the SPP, when it proves one of the above grounds. [1] Ex Officio Invalidation Art. 32.- REPEALED. (1) Art. 33.- The application for permanence of a worker in the SPP will be declared invalid at the moment the Superintendency confirms the incorporation of said worker into the SAP. Invalidation at Request Art. 34.- When proceeding at the request of a party, as in the cases foreseen in Art. 31, the following procedure must be observed:
a) The interested party must present an application to the ISSS or the INPEP, in accordance with what is established in the Instruction issued for such effect by the Superintendency. b) Upon receipt of the application requesting invalidation, the corresponding Pension Institution will have eight business days to gather the evidence it considers necessary to establish that one of the circumstances established in Art. 31 of this Regulation has occurred. c) After the term referred to in the previous letter has elapsed, the corresponding Pension Institution will have three business days to issue and send to the Superintendency the corresponding report; and d) Once the report is received, the Superintendency will have five business days to resolve on said situation. Without prejudice to what is established in this article, the interested party may provide, at any moment during the procedure before the resolution, relevant evidence.

CHAPTER VIII
ON INFORMATION OF THE AFFILIATE
Art. 35.- The Pension Institutions are obligated to maintain a documentary archive and a magnetic media archive of their affiliates. These archives must contain the general data of the affiliate and their beneficiaries, in addition to the Individual Work History referenced in art. 37. Art. 36.- The Superintendency will have direct access to this information in accordance with the provisions established through Instructions. Individual Work History Art. 37.- The Individual Work History of the affiliate is a file that must contain chronologically all antecedents and documents related to their general data and their work activity in the SPP, which must be kept updated. Affiliate Database Art. 38.- The Affiliate Database is a set of electronic files containing the general data and work history of each affiliate within the SPP and the SAP, if applicable. Art. 39.- This Database must be created and updated by the Pension Institutions, in conformity with the supporting documents that the Work History must contain. This information must be accessible in real time to the Superintendency, which will establish through Instructions the minimum contents and presentation formats, as well as the procedures and deadlines for transfer and access to the information. Art. 40.- In the event that an affiliate transfers from one Pension Institution to another, in accordance with this Regulation, the corresponding records of the history of each affiliate must be transferred to the destination Pension Institution, for incorporation into its Affiliate Database. Art. 41.- Each Pension Institution must send to the Superintendency a backup on magnetic media of the affiliate database on the first ten business days of January and July of each year. Art. 42.- The update of the file in magnetic media will be carried out in accordance with what the Superintendency stipulates in the respective instruction. Art. 43.- When an affiliate wishes to incorporate changes in their data, it will suffice for them to request it in writing, to the corresponding Pension Institution, attaching the documents that support the change they wish to make. In this request, they must specify at least the NUP, full names of the affiliate, and the type and number of personal identification document. Art. 44.- In the event that the changes requested, according to the previous article, are not appropriate, the corresponding Pension Institution will notify them within a period not exceeding three business days, indicating the reason. Art. 45.- When a worker transfers to the SAP, the corresponding Pension Institution must send the respective documentary file to the AFP to which they have affiliated; likewise, it must send electronically, and in accordance with what the Superintendency specifies in Instructions, a summary of the worker's work history. Art. 46.- In the event that the affiliation contract, which makes effective the incorporation of the worker into the SAP, is declared void by the
Superintendency, the AFP with which they were affiliated must transfer the documentary and magnetic file to the corresponding Pension Institution.

CHAPTER IX
FINAL PROVISIONS
Art. 47.- All rights and obligations between the affiliated worker and the corresponding Pension Institution will cease at the moment the affiliation contract to an AFP enters into force and their incorporation into the SAP, except the right to the Transfer Certificate, if applicable. Art. 48.- Any aspect not contemplated in this Regulation will be resolved by the Superintendency, based on the Applicable Legal Provisions. Art. 49.- This Decree will enter into force eight days after its publication in the Official Diary. GIVEN IN THE PRESIDENCY HOUSE: San Salvador, on the twenty-first day of the month of January of nineteen hundred ninety-eight. ARMANDO CALDERON SOL, President of the Republic. MANUEL ENRIQUE HINDS CABRERA, Minister of Finance. EDUARDO TOMASINO HURTADO, Minister of Labor and Social Welfare. MODIFICATIONS:
1) D.E. No. 59, of June 25, 2007. O.J. No. 134, Volume No. 376, of July 20, 2007.
Published in Official Diary No. 20
Volume 338, of January 30, 1998.
This compilation is an exact copy of what is established in the Official Diary.