[Federal Register Volume 61, Number 215 (Tuesday, November 5, 1996)]
[Proposed Rules]
[Pages 56904-56918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28083]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 61, No. 215 / Tuesday, November 5, 1996 / 
Proposed Rules  

[[Page 56904]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1605


Correction of Administrative Errors

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Executive Director of the Federal Retirement Thrift 
Investment Board (Board) is publishing a proposed revision to the 
Board's existing Error Correction Regulations. The proposed revision 
reorganizes the regulations to make them more concise and easy to read, 
reflects changes in Board policy and procedures adopted since 
publication of the regulations in 1987, and eliminates provisions that 
no longer apply.

DATES: Comments must be received on or before December 5, 1996.

ADDRESSES: Comments may be sent to: Elizabeth S. Woodruff, Federal 
Retirement Thrift Investment Board, 1250 H Street, N.W., Washington, 
D.C. 20005.

FOR FURTHER INFORMATION CONTACT: Elizabeth S. Woodruff, (202) 942-1661.

SUPPLEMENTARY INFORMATION: Interim regulations governing error 
correction relating to the Thrift Savings Plan (TSP) were published in 
the Federal Register on May 13, 1987 (52 FR 17919) and July 22, 1987 
(52 FR 27527). The final regulations, found at 5 CFR Part 1605, were 
published in the Federal Register on December 4, 1987 (52 FR 46314). 
The present proposal revises the final regulations. This proposed 
revision includes several substantive changes in the procedures by 
which administrative errors are corrected, as well as non-substantive 
editorial changes in style and organization.
    The proposed revision has been divided into four subparts. Subpart 
A contains definitions of terms used in this part. The definition 
section has been expanded to encompass a wider range of terms than was 
included in the existing regulation. The expanded definition section is 
consistent with the definitions contained in 5 CFR Part 1606, and 
should eliminate potential confusion or conflict between the provisions 
of the two parts. In addition, the proposed revision refers to Part 
1606 where such references clarify the relationship between the two 
parts.
    Subpart B applies to employing agency errors. The proposed revision 
has been reorganized for clarity into separate subparts for employing 
agency errors and for Board or TSP recordkeeper errors. Board and TSP 
recordkeeper errors are addressed in Subpart C.
    The existing regulations contain two largely duplicative sections: 
Sec. 1605.2, Failure to participate or delay in participation, and 
Sec. 1605.3, Insufficient contribution. The proposed revision combines 
these sections in Sec. 1605.2, makeup of missed or insufficient 
contributions, without substantive change in the essential rules of the 
existing regulation. Employing agencies are responsible for promptly 
making up employer contributions (agency automatic (1%) contributions 
and agency matching contributions) that they are obligated to make but 
have not made. If employee contributions have not been made due to an 
employing agency error, the participant may establish a schedule of 
makeup contributions to be deducted from current pay in addition to any 
regular TSP contributions the participant may be making. The employing 
agency is also responsible for contributing any applicable agency 
matching contributions on the missed employee contributions, but only 
when the participant makes up the employee contributions.
    Section 1605.4 of the existing regulations, titled ``Excess 
deduction or contribution,'' addresses removal by employing agencies of 
contributions from participants' accounts. The proposed revision deals 
with that subject in Sec. 1605.3, which incorporates more detailed 
rules for removal of contributions than were included in Sec. 1605.4 of 
the existing regulations. In particular, Sec. 1605.3 describes 
information employing agencies must submit on negative adjustment 
records, the processing of negative adjustment records (including 
calculation of investment gains and losses on the money that is 
removed), and the manner in which the money will be removed from the 
participants' accounts. Different rules apply to investment gains or 
losses for employee contributions and employer contributions.
    Sections 1605.9 and 1605.10 of the existing regulations address TSP 
contributions related to back pay awards or other retroactive pay 
adjustments. Those issues are addressed in Sec. 1605.4 of the proposed 
revision, which contains more detail about the types of elections a 
participant is entitled to make when he or she is reinstated without a 
break in service after reversal of a wrongful separation. The proposed 
revision clarifies that, for purposes of computing lost earnings on 
makeup contributions that relate to the period of wrongful separation, 
the participant may not choose investment funds with the benefit of 
hindsight concerning the performance of the TSP investment funds. 
Earnings will be calculated at the G Fund rate of return up to the date 
of any interfund transfer that was made by the participant during the 
period of separation. From the date of the interfund transfer forward, 
the lost earnings will be calculated as if the money had been invested 
in accordance with the percentages elected for the interfund transfer.
    This approach is consistent with, and reiterates, the rules 
established in Part 1606 (which addresses the payment of lost earnings 
attributable to employing agency errors), particularly Sec. 1606.11(c). 
As in the existing regulations, the proposed revision sets forth 
different rules for back pay awards or other retroactive pay 
adjustments for periods during which the participant remained employed 
by the Federal Government.
    Section 1605.5 governs situations where employing agencies have 
erroneously classified participants' retirement coverage (e.g., FERS or 
CSRS). This issue was previously addressed in Sec. 1605.11. The 
proposed revision provides more detailed rules than the existing 
regulation. Under the proposed revision, different rules apply for a 
FERS participant who has been misclassified as CSRS and a CSRS 
participant who has been misclassified as FERS.
    Section 1605.6 of the proposed revision provides for the employing

[[Page 56905]]

agencies to establish procedures for processing claims for correction 
of agency errors. This section also provides time limits for filing 
such claims. The proposed revision retains without substantive change 
the rules that apply to claims filed with employing agencies under 
existing Sec. 1605.8.
    Subpart C applies to errors committed by the Board or the TSP 
recordkeeper, not errors committed by employing agencies. Some Board or 
recordkeeper errors, as addressed in Sec. 1605.7, must be corrected by 
crediting earnings (positive or negative) to a participant's account in 
order to make the participant whole with respect to earnings the 
account would have received had the error not occurred. Such payments 
of lost earnings are, in effect, paid by the rest of the TSP 
participants, as if they were administrative expenses of the Plan. Such 
lost earnings should not be confused with those payable under Part 
1606, which are paid not by the Plan but by employing agencies that 
make errors relating to TSP accounts. Section 1605.7 also covers other 
errors that can be corrected by the TSP, such as reversal of taxable 
loan distributions caused by Board or TSP recordkeeper errors or 
erroneous processing of court orders.
    Section 1605.8 of the proposed revision contains rules for 
processing claims for correction made by Plan participants to the TSP 
recordkeeper or the Board. The proposed rules adopt the informal claims 
process that has evolved over the course of the Board's operations. 
Claims may be made in writing to the TSP recordkeeper or to the Board. 
There is no required format for presenting a claim; a letter setting 
forth the nature of the claim and the correction sought is sufficient. 
A participant may request review by the Board of a denial issued by the 
TSP recordkeeper. All decisions by the Board are final administrative 
decisions. Section 1605.8 also contains time limits for filing claims 
or requesting reconsideration of the denial of a claim by the TSP 
recordkeeper.
    Subpart D contains miscellaneous provisions not addressed by other 
subparts of the proposed revision.

Section-by-Section Analysis

Subpart A--Definitions

    Section 1605.1 contains definitions of terms used in this part. 
Important additions to this section are the definitions of ``employing 
agency error,'' ``Board error,'' and ``recordkeeper error.'' These 
terms warrant definition because they describe the errors that give 
rise to corrections under this part.
    The definitions are intentionally broad so that participants will 
be encouraged to seek correction whenever they are denied rights given 
in applicable statutes or regulations. When the Board, the TSP 
recordkeeper, or an employing agency fails to follow procedures 
provided in bulletins or other communication materials provided to 
participants or employing agencies, participants should be able to 
expect that those procedures will be followed, and to obtain correction 
under this part when they are not. However, other forms of relief, such 
as punitive damages or consequential damages, are not statutorily 
authorized.

Subpart B--Employing Agency Errors

    Section 1605.2 applies whenever an employing agency error causes a 
participant's TSP account not to receive all of the contributions it 
should receive, whether employee contributions, employer contributions, 
or both.
    Section 1605.2(b) applies to missed employer contributions. An 
employing agency's obligation to make agency automatic (1%) 
contributions is unrelated to any decision by the participant whether 
to make employee contributions. Under 5 U.S.C. 8432(c)(1)(A), if a FERS 
employee receives basic pay, he or she is entitled to receive agency 
automatic (1%) contributions. When an employing agency discovers that 
it has failed to provide them, it should promptly contribute the 
correct amount, in a lump sum, to the affected participant's account. 
The proposed revision eliminates the requirement in the existing 
regulations that the contributions be made within 30 days of the 
agency's discovery of the error, in favor of a requirement that the 
contributions be submitted ``promptly.'' Although this requirement 
provides greater flexibility than the previous standard, experience 
shows that prompt action will rarely require more than 30 days; it is 
anticipated that in most cases much fewer than 30 days will be 
sufficient. The employing agency may also be required to submit lost 
earnings records under Part 1606.
    Similarly, if an employing agency has made proper employee 
contributions on behalf of a FERS participant, but has failed to make 
all or any part of the agency matching contributions to which the 
participant is entitled, it must promptly make those contributions in a 
lump sum upon discovery of the error. Such contributions may also be 
subject to lost earnings under Part 1606.
    Under no circumstances may an employing agency submit agency 
matching contributions associated with employee contributions that have 
not yet been made. For instance, if a participant makes up missed 
employee contributions under Sec. 1605.2(c), then under 
Sec. 1605.2(c)(7) any associated agency matching contributions must be 
made throughout the schedule of makeup contributions. In that 
situation, no lump sum deposit of agency matching contributions is 
permitted. If the schedule of makeup contributions is suspended or 
terminated, then the associated agency matching contributions will 
similarly be suspended or terminated.
    Under proposed Secs. 1605.2(c) (1) and (2), in order to facilitate 
submission of any related lost earnings records by the employing 
agency, the Board has determined that the agency should have the 
flexibility to establish the schedule in a manner other than equal 
contributions. In some cases, this will enable the employing agency to 
avoid having to submit two or more lost earnings records (for agency 
matching contributions) having the same beginning date but different 
ending dates. Except to the extent necessary to accomplish that 
purpose, however, employing agencies are encouraged to work with 
participants to establish schedules providing for relatively equal 
makeup contributions.
    The Board has established a ceiling on the number of pay periods 
over which the makeup contributions may extend. This was done to allow 
participants sufficient time to make up missed contributions without 
undue financial burden and, at the same time, avoid an undue 
administrative burden on the employing agencies resulting from extended 
schedules of makeup contributions. The limit is four times the number 
of pay periods over which the error(s) occurred. The agency may, 
however, shorten that maximum period to no less than twice the number 
of pay periods over which the error(s) occurred. It is expected that 
employing agencies will exercise their discretion to shorten the 
maximum schedule of makeup contributions only if there are compelling 
administrative reasons to do so.
    Under Sec. 1605.2(c)(4), the makeup employee contributions are not 
counted against the percentage limit on TSP contributions per pay 
period. Because the makeup contributions merely allow the participant 
to make contributions that should have been made in earlier pay 
periods, the additional contributions are statutorily authorized. 
However, the Internal Revenue Code annual limits on contributions found 
at 26 U.S.C. 402(g)(1) and 26 U.S.C. 415

[[Page 56906]]

contain no exceptions for contributions that should have been made in 
prior years. The Board has no authority to waive the Internal Revenue 
Code annual limits. Section 1605.2(c)(5) permits any makeup 
contributions that cannot be made in any year because of the Internal 
Revenue Code annual limits to be carried forward into subsequent years.
    If application of the Internal Revenue Code annual limits is 
anticipated when the schedule of makeup contributions is established, 
the schedule can be designed to suspend contributions upon reaching the 
limit for any calendar year. Even if a schedule is not designed in this 
manner, the schedule may be suspended at the participant's request if 
necessary to avoid losing the opportunity to make regular TSP 
contributions. A similar suspension of the schedule is permitted when 
the participant does not have sufficient net pay to make the 
contribution called for by the schedule. A period of suspension does 
not count against the ceiling on the number of pay periods over which 
the schedule may extend.
    Under Sec. 1605.2(c)(6), a participant may elect to terminate a 
schedule of makeup contributions at will, but if he or she does so, 
that termination (as opposed to a suspension due to the Internal 
Revenue Code annual limits or insufficient net pay) is irrevocable. 
Also, once a schedule of payments begins, a participant may not make 
partial contributions under the schedule as an alternative to 
terminating the schedule.
    If a participant separates from Federal service before completing 
the schedule of makeup contributions, the participant may elect to have 
the remaining makeup contributions contributed from his or her final 
paycheck, without regard to the percentage limits (5% or 10%) contained 
in FERSA (but still subject to the Internal Revenue Code annual 
limits). Contributions may only be deducted from pay that constitutes 
basic pay. For example, no contributions may be deducted from a lump-
sum payment of annual leave, which is not basic pay.
    If there are further makeup contributions remaining on the schedule 
after the final paycheck, they may not be made up through any other 
method of contribution to the TSP. The participant's only remedy in 
that situation would be a direct action against the employing agency 
under 5 U.S.C. 8477 for lost benefits caused by the employing agency 
error (this may include, for example, lost opportunity to receive 
matching contributions and lost tax advantages). The Board anticipates 
that, in most cases, the participant and employing agency will be able 
to reach an administrative settlement of the participant's claim 
without involving the TSP and without the need to resort to the Federal 
courts.
    Under Sec. 1605.2(c)(8), any makeup employee contributions and 
makeup employer contributions must be reported by the employing agency 
for investment among the TSP investment funds using the participant's 
investment fund allocation election, if any, that is in effect at the 
time the makeup contributions are made. If no such allocation election 
is in effect at that time, the makeup contributions must be reported by 
the employing agency for investment in the G Fund. The money will not, 
in other words, be reported by the employing agency for investment in 
the investment fund(s) to which it would have been contributed had the 
error not occurred.
    The investment of the makeup contributions pursuant to the 
participant's current investment allocation does not, however, control 
any calculation of lost earnings on the makeup contributions. That 
calculation will be performed under the rules set forth in Part 1606, 
based on tracking by the TSP recordkeeper of the investment fund(s) in 
which the money would have been invested from the date it should have 
been contributed to the date the makeup contribution was actually made. 
In addition, under Part 1606, the processing of lost earnings records 
may cause money to be moved among the investment funds, in order to 
place the account in the position it would have attained had the error 
not occurred.
    Section 1605.2(c)(10) provides that makeup employee contributions 
may only be made by payroll deduction. Moreover, those payroll 
deductions may only be made from pay that constitutes basic pay. Makeup 
contributions may not be deducted from a final lump-sum payment of 
annual leave or from any other pay that does not constitute basic pay, 
such as the pay of a temporary employee.
    Section 1605.2(c)(11) serves as a reminder to employing agencies 
that correction under Part 1605 may not be sufficient to meet their 
obligation to correct agency contribution errors. It may also be 
necessary to submit lost earnings records under Part 1606.
    Section 1605.3 governs removal of erroneous contributions. This can 
arise in a multitude of circumstances, such as where a participant 
elects to contribute 1% of basic pay and the agency erroneously 
contributes 10% because of a data entry error, where an agency 
erroneously contributes matching contributions to the account of a CSRS 
participant who was temporarily (and incorrectly) classified as FERS, 
or when a participant erroneously classified as FERS chooses, upon 
learning of the proper retirement classification, to obtain a refund of 
contributions made to his or her account.
    Under Sec. 1605.3(b)(1), the employing agency must submit a 
separate negative adjustment record for each pay period involved. Each 
record must indicate the pay date for which the contribution was made, 
the amount of the contribution, the source(s) of the contribution, and 
the investment fund(s) to which the contribution was reported for 
investment by the employing agency. This information allows the TSP 
recordkeeper to verify that the contribution was in fact made and to 
calculate the investment gains or losses on the money for the period it 
was erroneously invested in the TSP. The calculation is done by 
tracking the monthly earnings of the investment fund(s) in which the 
erroneous contribution was invested, including consideration of how 
such contributions were reallocated among the investment funds as a 
result of any interfund transfer processed for the account during the 
relevant period of time.
    As referred to in Sec. 1605.3(b)(2), the Board has distributed to 
employing agencies detailed instructions concerning the submission of 
negative adjustment records. The Board may, from time to time, issue 
additional guidance or may change guidance that has been issued. When 
this occurs, the new information will be circulated to employing 
agencies with sufficient time for them to implement any changes to 
their payroll or other administrative systems that may be required by 
the new information. Employing agencies are required to comply with all 
such instructions, including providing any additional information those 
instructions may require.
    Section 1605.3(c) provides rules for processing negative adjustment 
records. Most of the processing responsibility is placed upon the TSP 
recordkeeper. Upon receipt of negative adjustment records, the TSP 
recordkeeper must edit them to ensure compliance with established 
conventions and to ensure that the records can be successfully 
processed. As soon as the edit process is completed, all acceptable 
adjustment records are placed in approved status for processing. If 
that occurs by the second-to-last business day of a month, the records 
will be processed as of the end of that month. If they are not accepted 
until the last business day of a month, they will be processed as of 
the end of the following month. The TSP recordkeeper cannot guarantee 
how long the edit process will take, although

[[Page 56907]]

it frequently takes only one to two days if there are no problems with 
the data. In order to ensure prompt processing, employing agencies are 
advised to submit negative adjustment records as early as possible 
during a month.
    Under Sec. 1605.3(c)(2), the TSP recordkeeper will separately 
compute the earnings attributable to the contributions for each pay 
date and source of contributions. The TSP recordkeeper will also 
determine the investment fund(s) in which the money being removed is 
invested. This requires applying the monthly earnings allocation 
factors for the relevant investment fund(s), as well as tracking the 
location of the money through any interfund transfers that occur after 
the erroneous contributions. Subject to the rules set forth in 
Sec. 1605.3(c)(3), money will be removed from the investment fund to 
which it has been traced.
    In determining investment gains and losses for erroneous 
contributions submitted on a given pay date, each source of 
contributions is treated separately. That is, investment gains and 
losses for the different TSP investment funds within a source of 
contributions will be netted against each other, but net gains or 
losses for different sources of contributions will not be netted 
against each other. Any other treatment would be inconsistent with the 
different character of the funds attributable to the three sources of 
contributions. For example, employee contributions are eligible to be 
borrowed, whereas agency matching contributions are not. Thus, if gains 
on employee contributions were offset against losses on employer 
contributions, the participant would not have as much money available 
to be borrowed as without such netting. Similarly, because only agency 
automatic (1%) contributions (and attributable earnings) are subject to 
the vesting requirements of 5 U.S.C. 8432(g), netting gains or losses 
on those contributions against the other two sources would improperly 
state the amount of money subject to the vesting requirement.
    For similar reasons, Sec. 1605.3(c)(3)(ii) prohibits using money in 
one source of contributions to return funds to an agency in connection 
with a negative adjustment submitted for another source of 
contributions. For example, if a negative adjustment to employee 
contributions requires returning $300 to the employing agency, and the 
participant only has $200 of employee contributions in his or her 
account (e.g., because of a loan that reduced the balance of employee 
contributions to $200), the additional $100 will not be returned to the 
employing agency from employer contributions. Rather, the negative 
adjustment to employee contributions will be deleted (i.e., not 
processed) and the employing agency may resubmit the negative 
adjustment record at a later time when the participant has sufficient 
employee contributions to cover it (e.g., due to loan repayments or new 
contributions).
    In contrast to netting across sources of contributions, 
Sec. 1605.3(c)(3)(iii) provides that within a source of contributions, 
gains and losses will be netted across the TSP investment funds. This 
is appropriate because such netting does not involve monies that are of 
a different character. The legal requirements applicable to all agency 
automatic (1%) contributions, for example, are the same regardless of 
the investment fund in which those monies are invested. If a negative 
adjustment to one source of contributions is tracked by the TSP 
recordkeeper to one investment fund, but there is not sufficient money 
in that investment fund to cover the entire adjustment, the money will 
be taken pro rata from the other investment funds. All of the money 
from the same source of contributions is considered to be of the same 
character.
    Sections 1605.3(d) and (e) explain, separately for employee 
contributions and employer contributions, the rules for determining how 
much money is returned to the employing agency in connection with a 
negative adjustment record. Under Sec. 1605.3(d)(1), if there is a net 
investment gain on an employee contribution, the employing agency 
receives the full face value of the negative adjustment. With one 
exception described in Sec. 1605.9(a) (relating to employees ineligible 
to have an account in the TSP), the earnings on the employee 
contributions remain in the participant's account. Leaving the earnings 
in the account compensates the participant for the fact that he or she 
did not otherwise have use of the money that the employing agency 
erroneously contributed. The earnings cannot be paid out of the Plan to 
the participant at the time the negative adjustment record is 
processed, however. This is because such a payment, as opposed to the 
refund of the erroneous contributions themselves, would be a taxable 
distribution from the TSP that is not permitted under FERSA prior to 
the participant's separation from Federal service. When the participant 
separates, he or she may withdraw the earnings, along with any other 
sums in the account, under the normal rules for withdrawal from the 
TSP.
    Section 1605.3 (d)(2) addresses investment losses on employee 
contributions. The employing agency receives only the amount of the 
erroneous contribution minus the amount of the investment loss. 
However, the investment loss does not change the agency's 
responsibility to refund to the participant the full face amount of the 
erroneous contribution, where appropriate. The net effect is that the 
employing agency is required to absorb the investment loss on money 
that was only contributed to the TSP on account of the agency's error. 
It would be inequitable to require the participant to absorb the risk 
of loss on the money. The revised rule, which comports with current 
practice, effectively prevents the employing agency from putting a 
participant's money at risk without proper authorization.
    Section 1605.3(d)(3) makes it clear that if an employing agency 
removes erroneous employee contributions, it must also submit negative 
adjustment records for any associated agency matching contributions. 
This is an extension of the general principle that no agency matching 
contributions may be made unless and until associated employee 
contributions are actually made. This principle cannot be circumvented 
by an employing agency's removing the employee contributions after 
agency matching contributions are made, and leaving the agency matching 
contributions in the TSP.
    Section 1605.3(e) addresses removal of erroneous employer 
contributions from participants' accounts. Section 1605.3(e)(1) 
provides that erroneous employer contributions may only be returned to 
the employing agency if the negative adjustment record is processed 
within one year of the processing of the contribution. This rule, which 
is contained in the existing regulations, is based on guidance issued 
by the Internal Revenue Service. If more than one year elapses, the 
employing agency must still submit any appropriate negative adjustment 
records to remove erroneous contributions from the participant's 
account. However, in this case, instead of the employing agency's 
receiving a refund of the erroneous contributions, the amount of the 
erroneous employer contribution (plus or minus investment gains or 
losses) is removed from the account and used to offset TSP 
administrative expenses, thereby benefitting the rest of the TSP 
participants. In order to avoid this result, employing agencies must 
identify and remove erroneous employer contributions within one year of 
their submission.
    Section 1605.3(e)(2) provides that if there is an investment gain 
on erroneous employer contributions that are to be

[[Page 56908]]

returned to the employing agency, the agency receives a refund of only 
the face value of the negative adjustment. The agency may not receive 
the benefit of the investment gain on the money. At the same time, the 
individual participant should not receive an earnings windfall due to 
the fortuity of an employing agency error. Thus, the earnings on 
erroneous employer contributions are removed from the account and used 
to offset TSP administrative expenses.
    Under Sec. 1605.3(e)(3), if there is an investment loss on the 
erroneous employer contributions that are either returned to the 
employing agency or removed from the account and used to offset TSP 
administrative expenses, the amount removed from the account will be 
the amount of the contribution less the investment loss. If the 
employing agency received the full amount of the erroneous 
contribution, then the amount of the loss would have to be made up out 
of the participant's money. The participant should not have to absorb 
an investment loss on employer money that was erroneously placed in his 
or her account.
    The TSP recordkeeper has issued three TSP bulletins containing 
detailed procedures and information concerning the submission, 
processing, and accounting for negative adjustment records. Those 
bulletins, Nos. 90-22, 90-23, and 90-28, can be obtained from the Board 
or TSP recordkeeper upon request.
    Section 1605.4 contains the rules for making up TSP contributions 
related to back pay awards or other retroactive pay adjustments. 
Section 1605.4(a) governs situations in which the participant was 
separated and subsequently reinstated with back pay. Under those 
circumstances, the participant could not have had a TSP contribution 
election in effect during the period of separation. Accordingly, under 
Sec. 1605.4(a)(1), immediately upon reinstatement the employing agency 
must give the participant an opportunity to make a current TSP 
contribution election on Form TSP-1, regardless of whether the 
reinstatement occurs during a TSP open season or TSP Election Period.
    Under Sec. 1605.4(a)(1), the effective date of the current Form 
TSP-1 will be the first day of the first full pay period in the most 
recent TSP election period. If the participant is reinstated during a 
TSP open season but before the election period, he or she may also 
submit a Form TSP-1 that will become effective the first day of the 
first full pay period in the following election period. For example, if 
these rules had been in effect in 1995 and a participant was reinstated 
on January 2, 1995, the effective date of the current Form TSP-1 would 
have been January 15, 1995 (the first day of the first full pay period 
in the most recent election period). If the participant had been 
reinstated on March 22, 1995, the effective date of the current Form 
TSP-1 would have been January 15, 1995. If a participant had been 
reinstated on May 20, 1995, the effective date of the current Form TSP-
1 would have been January 15, 1995. In addition, this participant could 
have submitted another Form TSP-1 to become effective on July 3, 1995 
(the first day of the first full pay period in the following election 
period).
    Under Sec. 1605.4(a)(2), the participant has several choices 
concerning makeup contributions for the period of erroneous separation. 
If he or she had a contribution election on file at the time of 
separation, the contribution election will be reinstated for the period 
of separation unless the participant affirmatively elects not to have 
those contributions made up. Alternatively, the participant may also 
affirmatively elect not to make up those contributions that would have 
been made from the date of separation through the end of the next TSP 
open season after separation. Finally, the participant may, for any 
open season after the one during which the separation occurred, elect 
any amount of makeup contributions that he or she would have been 
eligible to make had the separation not occurred.
    As provided in Sec. 1605.4(a)(3), the decisions made by the 
participant after returning do not include decisions concerning the 
investment funds in which the money would have been invested had the 
separation not occurred, nor can the participant choose to receive lost 
earnings for the period of separation based on the investment funds 
elected on a Form TSP-1 that was in effect at the time of separation. 
The effectiveness of that election came to an end when the participant 
separated, even though the separation was involuntary and ultimately 
found to have been erroneous. Any decisions made after the participant 
was rein- stated concerning the investment funds to use in the lost 
earnings calculation would be in direct violation of the principles set 
forth in Part 1606 (which applies to back pay awards and other 
retroactive pay adjustments, 5 CFR 1606.4(b)), in particular 5 CFR 
Sec. 1606.11(c).
    Thus, Sec. 1605.4(a)(3) provides that all lost earnings will be 
calculated at the G Fund rate of return up to the date of any interfund 
transfer processed during the period of separation. From the effective 
date of the interfund transfer forward, the amount of the earnings will 
be calculated based on the allocations elected on the interfund 
transfer request. The earnings (and related contributions) will also be 
moved among the investment funds to reflect the funds in which they 
would have been invested had the interfund transfer election been 
applied to them.
    Under Sec. 1605.4(b), if the participant remained em- ployed by the 
Federal Government for the period covered by the back pay award or 
other retroactive pay adjustment, the participant is bound by the 
contribution election that was in effect during that period. Thus, if 
the participant received less pay as a result of the action that led to 
the back pay award or other retroactive pay adjustment, or was 
otherwise limited in his or her ability to make the contributions that 
had been previously elected, the participant must make up the missed 
contributions. In this situation, because any investment elections made 
by the participant would have remained in effect, the lost earnings are 
calculated based on the investment elections made by the participant 
for the applicable period. The employing agency is also responsible for 
making any agency matching contributions and agency automatic (1%) 
contributions that would have been required had the action that led to 
the payment of back pay or of another type of retroactive pay 
adjustment not occurred.
    Section 1605.4(c)(1) provides that under both Sec. 1605.4(a) and 
Sec. 1605.4(b), any makeup employee contributions associated with the 
back pay award or other retroactive pay adjustment must be withheld 
from the award or adjustment and contributed to the participant's TSP 
account by the employing agency. It is not permissible for the 
employing agency to pay the back pay award or other retroactive pay 
adjustment to the participant and then accept a check or other form of 
payment from the participant for contribution to the TSP account. If 
the additional contributions associated with the back pay award or 
other retroactive pay adjustment would cause, or are anticipated to 
cause, a participant to exceed the Internal Revenue Code annual 
contribution limits, they may be carried forward (along with associated 
agency matching contributions) as makeup contributions to be deducted 
from pay in subsequent years.
    Section 1605.4(c)(2)(i) requires employing agencies to submit 
agency matching contributions and agency automatic (1%) contributions 
associated with a back pay award or other retroactive pay adjustment.

[[Page 56909]]

    Section 1605.4(c)(2)(ii) provides rules concerning the submission 
and processing of contributions associated with back pay awards and 
other retroactive pay adjustments. Although lost earnings on 
contributions associated with a back pay award or other retroactive pay 
adjustment are calculated based on the investment election in effect 
during the relevant period, the contributions must be reported by the 
employing agency for investment based upon the participant's investment 
allocation election in effect at the time of payment of the back pay 
award or other retroactive pay adjustment, rather than to the 
investment fund(s) previously elected. If there is no current election, 
the contributions must be reported by the employing agency for 
investment in the G Fund.
    Section 1605.4(e) provides an opportunity for participants to 
restore funds to their TSP accounts if the separation upon which the 
withdrawal of the funds was based is reversed. This opportunity cannot 
be exercised by participants who have elected to receive annuities. If 
a participant wishes to restore his or her account, he or she must so 
notify the Board within 90 days of reinstatement or lose that right.
    Section 1605.5 governs employing agency misclassifications of 
retirement coverage. CSRS participants are not permitted to make 
contributions in excess of 5%. Under Sec. 1605.5(a)(1), if a CSRS 
participant is erroneously classified as FERS, the employing agency 
must remove any employee contributions in excess of 5% of basic pay 
from the participant's account by submitting negative adjustment 
records in accordance with Sec. 1605.3. In addition, it is recognized 
that for FERS employees the prospect of receiving agency matching 
contributions is often a significant inducement to make contributions 
to the TSP. A CSRS participant erroneously classified as FERS would 
have made any decision to contribute to the TSP with the expectation of 
receiving agency matching contributions on the first 5% of basic pay. 
When those agency contributions are removed from the account, it would 
be inequitable to deny the participant the option of removing all of 
the employee contributions. Accordingly, Sec. 1605.5(a) provides that 
option.
    Section 1605.5(a)(2) describes a routine procedure pursuant to 
which the TSP recordkeeper will remove employer contributions from a 
previously misclassified participant's account once the account no 
longer has employer contributions that have been in the account for 
less than one year. The employing agency may continue to submit 
negative adjustment records as long as there are contributions that can 
be returned to the employing agency under the one-year rule contained 
in Sec. 1605.3(e)(1). Once all of the employer contributions have been 
in the account for one year or more, the employing agency cannot 
receive a refund of any of those contributions; submission of a 
negative adjustment record would cause the employer contributions (and 
associated earnings) to be removed from the account and be used to 
offset TSP administrative expenses. The TSP record keeper will, on its 
own initiative, remove the remaining employer contributions and 
associated earnings from the account.
    In contrast to a CSRS participant misclassified as FERS, when a 
FERS participant is erroneously classified as CSRS, any election to 
contribute would have been made by the participant with the knowledge 
that he or she will receive no agency contributions. If the participant 
wished to contribute without receiving agency contributions, it follows 
that the participant would also have contributed at least the same 
amount if the added inducement of agency contributions were present. 
Thus, Sec. 1605.5(b) does not allow such participants to elect to 
remove contributions made while misclassified as CSRS. However, because 
the participant has learned for the first time that the added 
inducement of agency contributions is available, the participant must 
be provided, as set forth in Sec. 1605.5(b), an opportunity to elect 
makeup employee contributions in addition to those, if any, that were 
elected while misclassified as CSRS. Thus, for example, if the 
participant contributed 2% of basic pay while misclassified as CSRS, he 
or she must be provided the opportunity to make up an additional 8% 
that he or she would have been able to contribute if properly 
classified as FERS. If the participant did not contribute at all while 
misclassified, he or she may make up the full 10% contribution. The 
employing agency must promptly make, in a lump sum, all agency matching 
contributions attributable to any employee contributions that were made 
during the period of misclassification. In addition, the employing 
agency must, in accordance with Sec. 1605.2(c)(7), make any applicable 
agency matching contributions attributable to the participant's makeup 
contributions, if any. Regardless of whether any employee contributions 
are made up, the employing agency must also contribute, in a lump sum, 
the appropriate agency automatic (1%) contributions.
    Section 1605.6 adopts, without significant substantive change, the 
provisions of existing Sec. 1605.8 concerning participants' claims for 
correction filed against their employing agencies. The rules for filing 
claims against the Board or the TSP recordkeeper are in a separate 
section of the proposed revision, Sec. 1605.8.
    One change contained in the proposed revision is elimination of 
existing Sec. 1605.8(a)(1) relating to employing agencies' referral of 
participants' claims to the Board. Experience has proven this provision 
to be unnecessary. As a practical matter, participants are able to 
discern whether a claim is properly filed with the employing agency or 
the Board. In those rare cases in which the participant is not sure, he 
or she may wish to file a claim with both the employing agency and the 
Board. It does not appear that in such cases there is a substantial 
risk of inconsistent rulings that would leave the participant without 
relief, because the Board and the employing agency should consult to 
determine which, if either, is responsible for any error that may have 
occurred. Moreover, any inconsistent rulings would ultimately be 
subject to judicial review under 5 U.S.C. 8477.
    Another change to the claim procedures is the provision in 
Sec. 1605.6(a)(1) that the 30-day period for the employing agency to 
issue an initial decision on the participant's claim may be extended if 
the employing agency provides the participant with good cause for 
needing more time. Experience has shown that a full investigation of 
potential errors may legitimately take longer than 30 days.
    Similarly, experience has shown that review of an employing 
agency's denial of a participant's claim can legitimately take longer 
than the 30 days provided in the regulations. Accordingly, 
Sec. 1605.6(a)(3) also adopts a good cause provision for extending the 
time period for a decision.
    As under the existing regulations, the burden to correct 
administrative errors lies, in the first instance, with the employing 
agency. If correction is not forthcoming, the participant may, within 
the time limits set forth under Sec. 1605.6(b) of the proposed 
revision, file a claim with his or her employing agency. If the 
participant fails to do so, he or she has not exhausted his or her 
administrative remedy and, therefore, is not eligible to file suit to 
compel the employing agency to correct the alleged error. However, 
regardless of whether

[[Page 56910]]

the participant files a timely claim for correction, the employing 
agency may, within its discretion and otherwise in accordance with this 
part, correct any administrative errors it determines to have occurred. 
Experience has shown that most employing agencies, in a good faith 
effort to ensure that their employees receive all of the retirement 
benefits to which they are entitled, are willing to correct their 
errors, even after the time for filing a claim has passed. Although 
employing agencies are encouraged to continue to do so, participants 
are urged to be diligent in reviewing their earnings and leave 
statements and their semiannual TSP Participant Statements to promptly 
identify any errors, and to protect their rights by filing timely 
claims when necessary.
    Section 1605.6(b)(1)(ii) clarifies when the one-year period for 
submitting a claim commences with respect to retirement code 
classifications. In particular, the proposed revision states explicitly 
that mere notice to a participant of his or her retirement code 
classification is not sufficient to trigger the one-year claim period 
if that classification turns out to be erroneous. For many 
participants, the determination of proper retirement classification 
requires application of a complex set of rules. The Board has 
determined that it would be unjust to presume that all employees are 
capable of making this determination and therefore to hold them 
responsible for failing to immediately identify an erroneous 
classification. Similarly the Board is concerned that all participants 
may not appreciate the potential impact of a retirement classification 
change on their TSP accounts.
    The rule adopted requires some other information that would 
indicate to the participant that he or she has been erroneously 
classified. In appropriate circumstances, the employing agency may 
determine that notice of a change in retirement classification 
constitutes sufficient notice that the earlier classification was 
erroneous. In addition, the proposed rule requires that in order to 
trigger the one-year time limit the employing agency must provide the 
participant with a written notice that specifically mentions the TSP 
and that the retirement code classification could have implications for 
the participant's TSP account. Of greatest concern is that the 
employing agency should advise a FERS employee who was misclassified as 
CSRS that the employee should consider making makeup contributions for 
the period of misclassification. Unless and until the appropriate 
notice is provided, the one-year time limit will not commence.

Subpart C--Board or TSP Recordkeeper Errors

    Under Sec. 1605.5 of the existing regulations, the only Board or 
TSP recordkeeper error addressed is erroneous posting of contributions. 
Section 1605.7 of the proposed revision addresses a broader range of 
potential Board or TSP recordkeeper error. The provisions of this 
section are derived from the experience of the Board in administering 
the TSP.
    Section 1605.7(a) addresses situations in which a Board or TSP 
recordkeeper error causes a participant's account to receive credit for 
less earnings than it would have received had the error not occurred. 
Such lost earnings should not be confused with agency-paid lost 
earnings under Part 1606. Paragraph (a)(1) sets forth the general rule 
that the account should be made whole by crediting to it the difference 
between the credit the account received and that which it would have 
received had the error not occurred. Paragraph (a)(1) also describes 
the most common situations giving rise to lost earnings. As stated in 
the text, however, the situations described in paragraphs (a)(1)(i)-
(iii) do not constitute an exhaustive list of the circumstances 
warranting payment of lost earnings attributable to Board or TSP 
recordkeeper error.
    Section 1605.7(a)(1)(i) requires the TSP to calculate and post lost 
earnings (positive or negative, as the case may be) when Board or TSP 
recordkeeper error causes a delay in crediting money to a participant's 
account. Although such errors are relatively rare, given the large 
volume of transactions processed by the Plan, some situations have 
occurred more frequently than others. One is where there is a delay in 
crediting contributions to a participant's account. Most often this 
occurs because of a delay in processing an employing agency's payroll 
submission. Where the delay does not prevent the payroll tape from 
being processed in the month during which it should be processed, no 
lost earnings correction is required because, under the Board's 
earnings allocation algorithm, participants receive the same credit for 
the month of contribution regardless of when during the month the 
contributions are credited. Where the error does cause a delay that 
continues into one or more months after the one during which the 
contributions should have been credited, the participants should be 
made whole. Most of these cases affect more than one participant; all 
participants whose contributions are on a tape that was delayed must be 
credited (charged) with additional investment earnings (losses), 
depending on the investment experience of the funds involved. If the 
earnings are calculated to be positive (due to investment gains), then 
the additional amounts posted to the accounts of the affected 
participants are, in effect, charged to the rest of the TSP 
participants through the earnings allocation process. Conversely, if 
there are investment losses, the amounts deducted from the affected 
participants' accounts are, in effect, credited to the rest of the TSP 
participants through the earnings allocation process.
    Other possible scenarios covered by Sec. 1605.7(a)(1)(i) are delays 
in crediting loan payments or loan prepayments, or delays in 
reinvesting returned checks.
    Section 1605.7(a)(1)(ii) covers situations in which loan or 
withdrawal checks are improperly issued. The error can take several 
forms, such as issuance to an address different from that provided to 
the TSP recordkeeper, issuance of a payment from the wrong account, or 
premature payment of a withdrawal. In all such cases, the participant 
ceases to receive credit for earnings as of the end of the month for 
which the withdrawal is made effective. The participant does not again 
receive full credit for earnings on the improperly disbursed funds 
until the month after the money is redeposited in his or her account. 
Thus, the Plan must make up all earnings for the period of 
disinvestment.
    Errors addressed under paragraph (a)(1)(ii) are, however, subject 
to the limitation contained in paragraph (a)(2). That is, if a 
participant receives funds that should not have been disbursed from his 
or her TSP account, he or she must promptly call the error to the 
Board's attention and return the funds for redeposit to the account. If 
the participant needlessly delays in returning the funds, or invests 
the funds before returning them to the TSP, then the participant may be 
deemed to have had the use of the funds during this period. If that 
occurs, the participant's account will not receive lost earnings for 
the period that he or she had use of the money. In general, 
determinations concerning whether a participant has had the use of 
money under paragraph (a)(2) must be made on a case-by-case basis, 
after an evaluation of all of the specific facts and circumstances. A 
standard of reasonableness will be applied by the Board.
    Section 1605.7(a)(1)(iii) provides for payment of lost earnings in 
cases where a Board or TSP recordkeeper error causes a participant's 
account to receive earnings based on an incorrect

[[Page 56911]]

investment fund allocation. This infrequent occurrence can take place 
when the TSP recordkeeper fails to process an interfund transfer 
request or processes it incorrectly. As described in paragraph (a)(3), 
participants affected by this type of error will be given a choice 
whether they wish to have it corrected. If so, the correction will 
involve calculating and crediting lost earnings as well as reallocating 
the account balance as it would have been had the error not occurred. A 
participant cannot choose the former without the latter, or vice versa. 
Section 1605.7(a)(4) establishes the investment funds for which the 
lost earnings calculations should be made. If the participant continued 
to have a TSP account during the period of the error, or would have had 
an account if the error had not occurred, then the rates of return the 
account would have earned during the relevant period will be used. For 
example, assume that separated Participant A requests a withdrawal, but 
the recordkeeper erroneously disburses Participant B's account as a 
result of a data entry error. Participant B promptly returns the 
erroneous disbursement, but his account loses earnings for a month. If 
Participant B had his entire account invested in the C Fund just prior 
to the erroneous disbursement, then he will receive lost earnings based 
on the C Fund rates of return. The same would be true if the erroneous 
disbursement from Participant B's account was a loan.
    In contrast, assume that separated Participant X requests a 
withdrawal of his entire account balance as of the end of November 
1996. The entire account is properly disbursed as of the end of 
November 1996, but the TSP recordkeeper erroneously causes the check to 
be mailed to an outdated address which had been properly changed by the 
participant. The check is lost and the funds are uninvested for three 
months, at which time the account is recredited with the amount that 
was disbursed in November 1996. Because the account would properly have 
been closed as of the end of November 1996, the lost earnings will be 
calculated at the G Fund rate of return.
    Finally, assume Participant L has an outstanding loan of $5,000 and 
decides to prepay it. The certified prepayment check is received in 
early October 1996 but due to TSP recordkeeper error is not credited to 
the account until December 1996. Since Participant L continued to have 
a TSP account during the period of the erroneous disinvestment, the 
lost earnings will be credited based on the investment funds in which 
the money would have been invested had the prepayment been properly 
credited in October. These rules are designed to approximate the 
earnings that the participant would have received if the error had not 
occurred. For periods when the TSP account would have been closed even 
if the error had not occurred, applying the G Fund rate provides the 
(former) participant with a reasonable positive rate of interest. It is 
not practicable for the Board to speculate on the earnings which the 
participant would have received on the money outside the Plan.
    Section 1605.7(b) provides for reversal of erroneous declarations 
of taxable loan distributions.
    Section 1605.7(c) makes explicit that the Executive Director has 
the discretion to make other corrections not specifically addressed 
elsewhere in Sec. 1605.7. The specific types of corrections listed in 
Sec. 1605.7 are not exclusive, and Board or TSP recordkeeper errors 
other than those addressed may properly give rise to lost earnings or 
other forms of corrective relief. Moreover, even if no Board or TSP 
recordkeeper error is involved, the Executive Director may determine 
that payment of lost earnings or other corrective relief is warranted 
under the circumstances. Such determinations must be made by the 
Executive Director on a case-by-case basis. In making these 
determinations, the Executive Director must comply with his fiduciary 
responsibilities under FERSA to all of the participants of the TSP. 
Thus, the Executive Director will consider factors such as the 
administrative cost of implementing the correction, the cost to the TSP 
as a whole of paying any lost earnings, and the harm to the affected 
participant if no correction is made.
    Section 1605.8 contains the provisions for filing claims with 
respect to Board or TSP recordkeeper error. The primary change from the 
existing regulations is to adopt a more informal process than that 
originally contemplated. This decision is based on the Board's 
experience in handling claims for correction. It has been determined 
that a more informal, flexible process is beneficial to all parties 
concerned.
    Under Sec. 1605.8, claims may be made either to the TSP 
recordkeeper or to the Board. The proposed revisions provide 
flexibility regarding which of those parties will process the claim. If 
the claim is submitted to the TSP recordkeeper, it may either be 
processed by the recordkeeper or sent to the Board to be processed. If 
the latter, or if the claim is initially submitted to the Board, the 
decision of the Board is final. If an initial decision is issued by the 
TSP recordkeeper, the participant may request review by the Board of 
any denial of all or any part of the claim. The decision by the Board 
on review is final.

Subpart D--Miscellaneous Provisions

    Section 1605.9 contains miscellaneous provisions. Paragraph (a) 
addresses residual earnings. If all employee contributions to a 
participant's account are removed, but earnings on those contributions 
remain in the account under the rules of this part, the earnings will 
not necessarily be removed from the account merely because there are no 
longer any employee contributions. This will usually occur when an 
agency erroneously contributes money to the account of a CSRS 
participant who is eligible to contribute to the TSP but has not 
elected to do so. When the contributions are removed, the earnings on 
the employee contributions will remain in the account. Such a 
participant will, like all other TSP participants, be entitled to 
withdraw his or her account balance in full upon separating from the 
Federal Government under the same rules that apply to withdrawal of 
other money in a participant's account. In contrast, an employee who 
was never eligible to contribute to the TSP is not, by law, entitled to 
have a TSP account or to receive benefits from the TSP. If residual 
earnings remain in the account of such an employee after all 
contributions have been removed, they will be removed from the account 
and applied against TSP administrative expenses. Any remedy the 
employee may wish to pursue would be against his or her employing 
agency and would not involve the Board, which is not in a position to 
provide any relief to the employee.
    Paragraph (b) provides for belated elections to contribute to the 
TSP because of circumstances beyond the participant's control (but not 
attributable to employing agency error). This belated election is 
currently found at 5 CFR 1605.2(b)(1) of the existing regulations. The 
proposed revision adopts the rule of that provision without substantive 
change. No makeup contributions are permitted under the circumstances 
addressed in this provision.
    Paragraph (c) contains a cross-reference to Part 1606 for 
correcting investment in an incorrect investment fund(s). Some 
employing agencies might be inclined to correct such an error by 
submitting a negative adjustment record to remove the money from the 
erroneous investment fund and then recontributing the money to the 
correct

[[Page 56912]]

investment fund. However, the only permissible correction is through 
Part 1606.
    Paragraph (d) provides addresses for the Board and TSP 
recordkeeper.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities.

Paperwork Reduction Act

    I certify that these regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act of 1980.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, section 201, 
Public Law 104-4, 109 Stat. 48, 64, the effect of this regulation on 
State, local, and tribal governments and on the private sector has been 
assessed. This regulation will not compel the expenditure in any one 
year of $100 million or more by any State, local, or tribal governments 
in the aggregate or by the private sector. Therefore, a statement under 
section 202, 109 Stat. 48, 64-65, is not required.

Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA), as amended by the Regulatory Enforcement Fairness Act of 1996, 
Pub. L. 104-121, tit. II, 110 Stat. 847, 857-875 (5 U.S.C. 
801(a)(1)(A)), the Board submitted a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to the publication of this rule in today's Federal 
Register. This rule is not a ``major rule'' as defined in section 
804(2) of the APA as amended (5 U.S.C. 804(2)).

List of Subjects in 5 CFR Part 1605

    Administrative practice and procedure, Employee benefit plan, 
Government employees, Pensions, Retirement.
Roger W. Mehle,
Executive Director, Federal Retirement Thrift Investment Board.

    For the reasons set out in the preamble, Part 1605 of chapter VI, 
Title 5 of the Code of Federal Regulations is proposed to be revised to 
read as follows:

PART 1605--CORRECTION OF ADMINISTRATIVE ERRORS

Subpart A--Definitions

Sec.
1605.1  Definitions.

Subpart B--Employing Agency Errors

1605.2  Makeup of missed or insufficient contributions.
1605.3  Removal of erroneous contributions.
1605.4  Back pay awards and other retroactive pay adjustments.
1605.5  Misclassification of retirement coverage.
1605.6  Procedures for claims against employing agencies; time 
limitations.

Subpart C--Board or TSP Recordkeeper Errors

1605.7  Plan-paid lost earnings and other corrections.
1605.8  Claims for correction of Board or TSP Recordkeeper errors; 
time limitations.

Subpart D--Miscellaneous Provisions

1605.9  Miscellaneous provisions.

    Authority: 5 U.S.C. 8351 and 8474.

Subpart A--Definitions


Sec. 1605.1  Definitions.

    The following definitions apply for purposes of this part:
    Account or TSP account means a participant's account in the Thrift 
Savings Plan;
    Agency automatic (1%) contributions means any contributions made 
under 5 U.S.C. 8432(c)(1) or (c)(3);
    Agency contributions means agency automatic (1%) contributions and 
agency matching contributions;
    Agency matching contributions means any contributions made under 5 
U.S.C. 8432(c)(2);
    Basic pay means basic pay as defined in 5 U.S.C. 8431(3), and it is 
the rate of pay used in computing any amount the individual is required 
to contribute to the Civil Service Retirement and Disability Fund as a 
condition for participating in the CSRS or the FERS, as the case may 
be;
    Board means the Federal Retirement Thrift Investment Board;
    Board error means any act or omission by the Board that is not in 
accordance with applicable statutes, regulations, or administrative 
procedures made available to employing agencies and/or TSP participants 
(including, but not limited to, TSP communications materials and other 
publications);
    C Fund means the Common Stock Index Investment Fund established 
under 5 U.S.C. 8438(b)(1)(C);
    CSRS means the Civil Service Retirement System established by 
Subchapter III of chapter 83 of title 5, U.S.C., and any equivalent 
Federal Government retirement plan;
    CSRS employee or CSRS participant means any employee, member, or 
participant covered by CSRS, including employees authorized to 
contribute to the Thrift Savings Plan under 5 U.S.C. 8351, or 5 U.S.C. 
8440a through 8440d;
    Employee contributions means any contributions to the Thrift 
Savings Plan made under 5 U.S.C. 8432(a), 5 U.S.C. 8351 or 5 U.S.C. 
8440a through 8440d;
    Employer contributions means agency automatic (1%) contributions 
and agency matching contributions;
    Employing agency means any entity that provides or has provided pay 
to an individual, thereby incurring responsibility for submitting to 
the Thrift Savings Fund contributions made by or on behalf of that 
individual; any entity responsible for submitting TSP loan payments on 
behalf of an individual; or any other entity that has employed an 
individual and has provided information that affects or has affected 
that individual's TSP account;
    Employing agency error means any act or omission by an employing 
agency that is not in accordance with all applicable statutes, 
regulations, or administrative procedures, including internal 
procedures promulgated by the employing agency and TSP procedures 
provided to employing agencies by the Board or TSP recordkeeper;
    Executive Director means the Executive Director of the Board under 
5 U.S.C. 8474;
    F Fund means the Fixed Income Investment Fund established under 5 
U.S.C. 8438(b)(1)(B);
    FERS means the Federal Employees' Retirement System established by 
chapter 84 of title 5, U.S.C., and any equivalent Federal Government 
retirement plans;
    FERS employee or FERS participant means any employee, member, or 
participant covered by FERS;
    G Fund means the Government Securities Investment Fund established 
under 5 U.S.C. 8438(b)(1)(A);
    Interfund transfer means the movement of all or a portion of a 
participant's existing account balance among the TSP investment funds;
    Investment fund means the C Fund, the F Fund, the G Fund, and any 
other TSP investment funds created subsequent to [the effective date of 
the final regulations];
    Investment fund election means a choice by a participant concerning 
how TSP contributions shall be allocated among the TSP investment 
funds;
    Lost earnings record means a data record containing information 
enabling the TSP system to compute lost earnings

[[Page 56913]]

and to determine the investment fund in which money would have been 
invested had an error not occurred;
    Makeup contributions means employee or employer contributions that 
are made for an earlier period during which they would have been made 
but for an employing agency error;
    Negative adjustment record means a data record submitted by an 
employing agency to remove money from a participant's account;
    Open season means the period during which participants may choose 
to begin making contributions to the TSP, to change or discontinue the 
amount currently being contributed to the TSP (without losing the right 
to recommence contributions the next open season), or to allocate 
prospective contributions to the TSP among the investment funds;
    Participant means any person with an account in the TSP, or who 
would have an account in the TSP but for an employing agency error;
    Recordkeeper error means any act or omission by the TSP 
recordkeeper that is not in accordance with applicable statutes, 
regulations, or administrative procedures made available to employing 
agencies and/or TSP participants (including, but not limited to, TSP 
communications materials and other publications);
    Source of contributions means either employee contributions, agency 
automatic (1%) contributions, or agency matching contributions;
    Thrift Savings Plan, TSP, or Plan means the Federal Retirement 
Thrift Savings Plan established by the Federal Employees' Retirement 
System Act of 1986 (FERSA), Pub. L. 99-335, 100 Stat. 514, which has 
been codified, as amended, primarily at 5 U.S.C. 8401-8479; and
    TSP Recordkeeper means the entity that is engaged by the Board to 
perform recordkeeping services for the TSP. As of the effective date of 
these regulations, the TSP recordkeeper is the National Finance Center, 
Office of the Chief Financial Officer, United States Department of 
Agriculture, located in New Orleans, Louisiana.

Subpart B--Employing Agency Errors


Sec. 1605.2   Makeup of missed or insufficient contributions.

    (a) Applicability. This section applies whenever, as the result of 
an employing agency error, a participant does not receive all of the 
contributions to his or her account to which the participant is 
entitled. This includes, but is not limited to, situations in which an 
employing agency error prevents a participant from making an election 
to contribute to the TSP, the employing agency erroneously fails to 
implement a contribution election properly submitted by a participant, 
the employing agency fails to make agency automatic (1%) contributions 
or agency matching contributions that it is required to make, or the 
employing agency erroneously contributes less to the TSP than it would 
have contributed had the error not occurred. The corrections required 
by this section must be made in accordance with this part and 
procedures provided to employing agencies, from time to time, by the 
Board or the TSP recordkeeper in bulletins or other guidance. It is the 
responsibility of the employing agency to determine whether it has made 
an error that entitles a participant to correction under this section.
    (b) Missed employer contributions. If an employing agency has 
failed to make agency automatic (1%) contributions that are required to 
be made under 5 U.S.C. 8432(c)(1)(A), agency matching contributions 
that are required to be made under 5 U.S.C. 8432(c)(2) based on 
employee contributions that have been made, or contributions required 
to be made under 5 U.S.C. 8432(c)(3), then:
    (1) The employing agency must promptly submit, in a lump sum, all 
such missed contributions to the TSP recordkeeper on behalf of the 
affected participant. Makeup contributions must be allocated by the 
employing agency among the TSP investment fund(s) using the 
participant's current investment fund election at the time the makeup 
contributions are made. If no such election is on file, the 
contributions will be reported by the employing agency for investment 
in the G Fund.
    (2) If applicable, the employing agency must also submit any lost 
earnings records required under 5 CFR Part 1606.
    (c) Missed employee contributions. Within 30 days of receiving 
information from his or her employing agency that indicates that the 
employing agency acknowledges that an error has occurred that has 
caused less employee contributions to be made to the participant's 
account than would have been made had the error not occurred, a 
participant may elect to establish a schedule of makeup contributions 
to replace the missed contributions through future payroll deductions, 
in addition to any regular TSP contributions that the participant is 
entitled to make. The following rules apply to makeup contributions:
    (1) The schedule of makeup contributions elected by the participant 
must establish the amount of contributions to be made each pay period 
over the duration of the schedule. The contribution amount per pay 
period may vary during the course of the schedule, but the amounts to 
be contributed should be established when the schedule is created. The 
schedule may not exceed four times the number of pay periods over which 
the errors occurred.
    (2) The employing agency may, but need not, set a ceiling on the 
length of the schedule of makeup contributions which is less than four 
times the number of pay periods over which the errors being corrected 
occurred. The ceiling may not, however, be less than twice the number 
of pay periods over which the errors being corrected occurred.
    (3) The employing agency must implement the schedule of makeup 
contributions as soon as practicable after the participant has made an 
election to implement a makeup schedule.
    (4) Makeup contributions will not be considered in applying the 
maximum amount per pay period that a participant is permitted to 
contribute to the TSP (e.g., 5% of basic pay for CSRS participants, 10% 
of basic pay for FERS participants), but will be included for purposes 
of applying the annual limits contained in 26 U.S.C. 402(g)(1) and 26 
U.S.C. 415.
    (5) A participant's regular TSP contributions will always take 
precedence over makeup contributions. Thus, when establishing a 
schedule of makeup contributions, the employing agency must review any 
schedule proposed by the affected participant as well as the 
participant's current TSP contribution election, to determine whether 
the makeup contributions, when combined with regular TSP contributions, 
are expected to exceed the annual limits contained in 26 U.S.C. 
402(g)(1) and 415. If so, the participant may elect to have the 
schedule of makeup contributions established in such a manner that the 
payments will, at an appropriate time, be suspended until the makeup 
contributions can be made within the annual limits. In any event, a 
schedule of makeup contributions may be suspended at any time in order 
to avoid a situation in which the participant is unable to make regular 
TSP contributions because of the annual limits. Similarly, a schedule 
of makeup contributions may be suspended if a participant has 
insufficient net pay to permit the makeup contributions. If a schedule 
of makeup contributions is suspended because of the annual limits or 
because of insufficient net pay, the period of suspension will not be 
counted against

[[Page 56914]]

the maximum number of pay periods the participant has to complete the 
schedule of makeup contributions.
    (6) A participant may elect to terminate a schedule of makeup 
contributions at any time, but may not elect to make partial payments 
under the schedule. Any such termination is irrevocable. If a 
participant separates from employment that makes the participant 
eligible to contribute to the TSP, the participant may elect to 
accelerate the payment schedule by a lump sum contribution from his or 
her final paycheck. No contributions may be made other than by payroll 
deduction from pay that constitutes basic pay.
    (7) To the extent a participant makes up missed employee 
contributions, the employing agency must contribute any agency matching 
contributions that would have been made had the employing agency error 
that caused the missed employee contributions not been made. The agency 
matching contributions must be made in installments over the course of 
the schedule of makeup contributions. The participant may not receive 
matching contributions associated with any employee contributions that 
are not made up. If the makeup contributions are suspended in 
accordance with paragraph (c)(5) of this section, the payment of agency 
matching contributions must also be suspended.
    (8) Makeup contributions must be reported by the employing agency 
for investment among the TSP investment fund(s) using the participant's 
current investment fund election at the time the makeup contributions 
are made. If no such election is on file, the contributions must be 
reported by the employing agency for investment in the G Fund.
    (9) Where a participant has transferred to a different employing 
agency from the one at which the participant was employed at the time 
of the missed contributions, it remains the responsibility of the 
former employing agency to determine whether an employing agency error 
is responsible for the missed contributions. If it is determined that 
such an error has occurred, the current agency must take any necessary 
steps to correct the error. The current agency may seek reimbursement 
from the former agency of any amount that would have been paid by the 
former agency had the error not occurred.
    (10) Makeup employee contributions may be made only by payroll 
deduction from pay that constitutes basic pay. Contributions by check, 
money order, cash, or other form of payment, directly from the 
participant to the TSP, or from the participant to the employing agency 
for deposit to the TSP, are not permitted.
    (11) If applicable, the employing agency must submit any lost 
earnings records required under 5 CFR Part 1606.


Sec. 1605.3  Removal of erroneous contributions.

    (a) Applicability. This section applies whenever, as a result of an 
employing agency error, a TSP account contains money that should not 
have been contributed to the account and which, therefore, must be 
removed from the account. This includes, but is not limited to, 
situations in which, because of an employing agency error, employee 
contributions in excess of those elected by a participant are 
contributed to the participant's account, employee contributions (and 
any associated agency matching contributions) are made on behalf of a 
participant who did not elect to have any contributions made, excess 
employer contributions are made to a participant's account, or employee 
contributions are made in excess of the amount permissible because of 
an improper retirement classification that is subsequently corrected 
(e.g., a CSRS employee is permitted to make contributions in excess of 
5% of basic pay during a temporary misclassification as FERS).
    (b) Negative adjustment records. (1) In order to remove money from 
a participant's account, the employing agency must submit, for each pay 
date involved, a negative adjustment record indicating the amount of 
the contribution being removed, the pay date for which it was made, the 
source(s) of the contributions involved (i.e., employee contributions, 
agency automatic (1%) contributions or agency matching contributions), 
and the investment fund or funds to which the erroneous contribution 
was made. A negative adjustment record may be for all or a part of the 
contributions made for the applicable pay date, investment fund and 
source of contributions, but for each investment fund and source of 
contributions the negative adjustment may not exceed the amount of 
contributions made for that pay date.
    (2) Negative adjustment records must be submitted in accordance 
with this part and with procedures provided to employing agencies from 
time to time by the Board or the TSP recordkeeper in bulletins or other 
guidance. Negative adjustment records must also include any additional 
information required in any such bulletins or other guidance.
    (c) Processing negative adjustment records. Negative adjustment 
records will be processed in accordance with the following rules:
    (1) Negative adjustment records received and accepted by the TSP 
recordkeeper by the second-to-last business day of a month will be 
processed effective as of the end of that month. Negative adjustment 
records accepted by the TSP recordkeeper on the last business day of a 
month will be processed effective as of the end of the following month.
    (2) When negative adjustment records are processed, the TSP 
recordkeeper will determine separately, for each pay date and source of 
contributions involved, the amount of any investment gains or losses on 
the money the agency seeks to remove from the account and the 
investment fund or funds in which that money is currently invested. In 
making these determinations, investment gains and losses from the 
different TSP investment funds will be netted against each other. 
Investment gains and losses for different sources of contributions will 
be treated separately; gains and losses for different sources of 
contributions will not be netted against each other. The TSP 
recordkeeper will take into consideration any interfund transfers made 
effective on or after the date on which the erroneous contribution was 
processed.
    (3) (i) Multiple negative adjustment records in the same processing 
cycle will be processed in the order of the applicable pay dates, 
starting with the earliest pay date.
    (ii) If the participant's account does not have sufficient funds in 
the applicable source of contributions to pay the amount of a negative 
adjustment, the adjustment to that source of contributions will not be 
processed. Funds may not be taken from another source of contributions 
to cover the negative adjustment. The employing agency may, at a later 
date, resubmit the record that was not processed. It will be processed 
if, at that time, there are sufficient funds for the applicable source 
of contributions.
    (iii) If there are sufficient funds in the applicable source of 
contributions to pay the amount required by a negative adjustment 
record, but any of the investment funds does not have sufficient money 
to pay the portion that is attributable to that investment fund (e.g., 
because of a loan), then the amount required will be removed from the 
other investment fund(s), pro rata, based on the participant's total 
account balance in each investment fund for that source of 
contributions.
    (d) Employee contributions. The following rules apply to removal of

[[Page 56915]]

employee contributions from a participant's account:
    (1) If there is a net investment gain on the erroneous employee 
contribution made for a pay date, then the full amount of the erroneous 
contribution will be returned to the employing agency. Subject to 
Sec. 1605.9(a), the investment earnings on the erroneous contribution 
will remain in the participant's account.
    (2) If there is a net investment loss on the erroneous employee 
contribution made for a pay date, then the employing agency will 
receive only the amount of the erroneous contribution reduced by the 
investment loss. However, the investment loss does not affect the 
employing agency's obligation to refund to the participant the full 
amount of the erroneous contribution.
    (3) If an employing agency removes erroneous employee contributions 
from a participant's account, it must also remove, under paragraph (e) 
of this section, any associated agency matching contributions.
    (e) Employer contributions. The following rules apply to removal of 
employer contributions from a participant's account:
    (1) Employer contributions will only be returned to the employing 
agency if the negative adjustment record submitted to remove the 
contributions is processed within one year of the date the contribution 
was processed. If more than one year has elapsed when the negative 
adjustment record is processed, the amount of the employer contribution 
plus (or minus) any investment gains (or losses) will be removed from 
the participant's account and used to offset TSP administrative 
expenses rather than returned to the employing agency. The employing 
agency's obligation to submit negative adjustment records to remove 
erroneous contributions from a participant's account is not affected by 
whether the contribution has been in the account for more or less than 
one year at the time the negative adjustment record is to be processed.
    (2) Subject to paragraph (e)(1) of this section, if there is a net 
investment gain within a source of contributions for an erroneous 
employer contribution, then the employing agency will receive the full 
amount of the negative adjustment submitted. The earnings attributable 
to the erroneous contributions in the applicable source of 
contributions will be removed from the participant's account and used 
to offset TSP administrative expenses.
    (3) Subject to paragraph (e)(1) of this section, if there is a net 
investment loss within a source of contributions for an erroneous 
employer contribution, then the employing agency will receive only the 
amount of the erroneous contribution reduced by the investment loss.


Sec. 1605.4  Back pay awards and other retroactive pay adjustments.

    (a) Participant not employed. The following rules apply to 
participants who receive a back pay award or other retroactive pay 
adjustment for a period during which the participant was separated from 
Government employment:
    (1) If the participant is reinstated to Government employment, then 
immediately upon reinstatement the employing agency must give the 
participant the opportunity to submit a contribution election form 
(Form TSP-1) to make current contributions. The effective date of the 
form will be the first day of the first full pay period in the most 
recent TSP election period. If the participant is reinstated during a 
TSP open season but before the election period, he or she can also 
submit an election form that will become effective the first day of the 
first full pay period in the following election period.
    (2) The participant must be given the following options for 
electing makeup contributions:
    (i) If the participant had a valid contribution election form (Form 
TSP-1) on file when he or she separated, upon the participant's 
reinstatement to Government employment that election form will be 
reinstated for purposes of makeup contributions, unless a new 
contribution election form is submitted to terminate all makeup 
contributions or those contributions that would have been made from the 
date of separation through the end of the open season that occurred 
immediately after the separation.
    (ii) Instead of making contributions for the period of separation 
under the reinstated contribution election form, the participant may 
submit a new election form for any open season that occurred during the 
period of separation. However, the investment allocation on each Form 
TSP-1 for the period of separation must be the same as the investment 
allocation on the current Form TSP-1.
    (3) Lost earnings will be calculated and credited to the 
participant's account, in accordance with 5 CFR part 1606, using the 
rates of return for the G Fund, unless the participant submitted one or 
more interfund transfer requests during the period of separation. In 
the case of interfund transfer requests, the earnings will be 
calculated using the G Fund rates of return until the first interfund 
transfer was processed. The contribution that is subject to lost 
earnings will be moved to the investment fund(s) the participant 
requested and lost earnings will be calculated based on the earnings 
for that fund(s). The amount of lost earnings calculated will be posted 
to the investment fund(s) to which the contribution was moved by the 
interfund transfer. If there were no interfund transfers processed 
during the lost earnings calculation period, the amount of lost 
earnings calculated will be posted to the employee's G Fund account.
    (b) Participant employed. The following rules apply to participants 
who receive a back pay award or other retroactive pay adjustment for a 
period during which the participant was not separated from Government 
employment:
    (1) The participant will only be entitled to makeup contributions 
for the period covered by the back pay award or retroactive pay 
adjustment if, for that period, the participant had designated a 
percentage of basic pay to be contributed to the TSP or had designated 
a dollar amount of contributions each pay period which had to be 
reduced (because of an applicable 5% or 10% limit on contributions per 
pay period) as a result of the reduction in pay that is made up by the 
back pay award or other retroactive pay adjustment.
    (2) The employing agency must compute the amount of additional 
employee contributions that would have been contributed to the 
participant's account had the action leading to the back pay award or 
other retroactive pay adjustment not occurred. The employing agency 
must also compute the amount of agency matching contributions and 
agency automatic (1%) contributions that would have been payable had 
that action not occurred.
    (c)(1) Makeup employee contributions required under paragraphs (a) 
and (b) of this section must be computed prior to payment of the award 
of back pay or other retroactive pay adjustment. The makeup employee 
contributions must be deducted from the payment of the back pay award 
or other retroactive pay adjustment and contributed to the TSP, unless 
the payment of such contributions will cause the participant to exceed 
the annual contribution limits contained in 26 U.S.C. 402(g)(1) or 26 
U.S.C. 415 (taking into consideration the expected regular TSP 
contributions the participant will make during the year in which the 
back pay award or other retroactive pay adjustment is paid). To

[[Page 56916]]

the extent TSP contributions from the back pay award or other 
retroactive pay adjustment would cause the participant to exceed the 
elective deferral limits contained in 26 U.S.C. 402(g) or 415, such 
contributions may be carried forward into subsequent years and made 
(along with attributable agency matching contributions) pursuant to a 
schedule of makeup contributions established under the rules set forth 
in Sec. 1605.3(c).
    (2) (i) If employee contributions are deducted from a back pay 
award or other retroactive pay adjustment, the employing agency will be 
responsible for contributing the associated agency matching 
contributions at the same time the employee contributions are made. 
Regardless of whether a participant elects makeup employee 
contributions, the employing agency must make, in a lump sum payment, 
all appropriate agency automatic (1%) contributions associated with the 
back pay award or other retroactive pay adjustment.
    (ii) Any makeup contributions (both employee and employer) 
associated with a back pay award or other retroactive pay adjustment 
must be reported by the employing agency for investment among the TSP 
investment fund(s) using the participant's investment fund election in 
effect at the time the makeup contributions are made. If no such 
election is on file, the contributions must be reported by the 
employing agency for investment in the G Fund.
    (d) The employing agency must pay any lost earnings on TSP 
contributions derived from back pay awards or other retroactive pay 
adjustments that are required to be paid under 5 CFR part 1606.
    (e) If a participant has withdrawn his or her TSP account other 
than by purchasing an annuity, and the separation from Government 
employment upon which the withdrawal was based is reversed, resulting 
in reinstatement of the participant without a break in service, then 
the participant will have the option, which must be exercised by notice 
to the Board within 90 days of reinstatement, to restore to his or her 
TSP account the amount withdrawn. The right to restore the withdrawn 
funds will expire if the notice is not provided to the Board within 90 
days of reinstatement. No earnings will be paid on any restored funds.


Sec. 1605.5  Misclassification of retirement coverage.

    (a) If a CSRS participant is misclassified by an employing agency 
as a FERS participant, when the misclassification is corrected--
    (1) The employing agency must, under Sec. 1605.3, remove all 
employee contributions that exceeded 5% of basic pay for the pay 
period(s) involved, and refund to the participant the amount 
contributed. In addition, the employing agency must submit negative 
adjustment records to remove all employer contributions made to the 
participant's account during the period of misclassification that have 
been in the account for less than one year. The participant may choose 
whether or not he or she wishes to have the remainder of the employee 
contributions made during the period of misclassification removed from 
his or her account and refunded to the participant; and
    (2) If the participant's account at any time contains no employer 
contributions that have been in the account for less than one year, the 
TSP recordkeeper will remove from the account any employer 
contributions that have been in the account for one year or more (and 
associated earnings), and will use such amounts to offset TSP 
administrative expenses.
    (b) If a FERS participant is misclassified as a CSRS participant, 
when the misclassification is corrected he or she may not elect to have 
the contributions made while classified as CSRS removed from his or her 
account. The employing agency must make in a lump sum payment, pursuant 
to Sec. 1605.2(b)(1), the appropriate agency automatic (1%) 
contributions and agency matching contributions on the employee 
contributions that were made while the participant was misclassified as 
CSRS. The participant may also elect to make, under Sec. 1605.2(c), 
additional contributions that he or she would have been eligible to 
make as a FERS participant during the period of misclassification. If 
such contributions are made, the employing agency must also submit any 
associated agency matching contributions and any lost earnings records 
required under 5 CFR part 1606.


Sec. 1605.6  Procedures for claims against employing agencies; time 
limitations.

    (a) Agency procedures. Each employing agency must establish 
procedures for participants to submit claims for correction under this 
subpart. Each employing agency's procedures must include the following:
    (1) The employing agency will provide the participant with a 
decision on any claim within 30 days of receipt of the claim unless the 
employing agency provides the participant with good cause for requiring 
a longer period to decide the claim. Any decision to deny a claim in 
whole or in part must be in writing and must include the reasons for 
the denial (including citations to any applicable statutes, regulations 
or procedures), a description of any additional material that would 
enable the participant to perfect his or her claim, and a statement of 
the steps to be taken to appeal the denial.
    (2) The employing agency must permit a participant at least 30 days 
to appeal the employing agency's denial of all or any part of his or 
her claim for correction under this subpart. The appeal must be in 
writing and addressed to the agency official designated in the initial 
denial decision or in procedures promulgated by the agency. The 
participant may include with his or her appeal any documentation or 
comments that the participant deems relevant to the claim.
    (3) The employing agency must issue a written decision on a timely 
filed appeal within 30 days of receipt of the appeal unless the 
employing agency provides the participant with good cause for taking a 
longer period to decide the appeal. The employing agency decision must 
include the reasons for the decision, as well as citations to any 
applicable statutes, regulations, or procedures.
    (4) If the agency decision on the appeal is not issued in a timely 
manner, or if the appeal is denied in whole or in part, the participant 
will be deemed to have exhausted his or her administrative remedy and 
will be eligible to file suit against the employing agency under 5 
U.S.C. 8477. There is no administrative appeal to the Board of a final 
agency decision.
    (b) Time limit for filing claims. (1) Upon discovery of 
administrative errors, employing agencies are required to promptly 
correct those errors under this subpart, regardless of whether a claim 
for correction is received from the affected participant. If an error 
has not been corrected by the employing agency, the affected 
participant may file a claim for correction with his or her employing 
agency. The claim must be filed within one year of the earlier of:
    (i) Receipt of a pay stub, earnings and leave statement, or other 
document reflecting the error; or
    (ii) The close of the first TSP election period following the 
participant's receipt of a TSP Participant Statement reflecting the 
error. For purposes of this paragraph (b)(1)(ii) and paragraph 
(b)(1)(i) of this section, in the case of a participant who has been 
improperly classified as to retirement coverage, the receipt of a 
document indicating the participant's retirement code

[[Page 56917]]

classification is not, in and of itself, sufficient to notify the 
participant that his or her retirement classification is incorrect. 
However, receipt of a document indicating a change in retirement code 
classification, in addition to a written notice to the participant that 
the change may have implications for his or her TSP account, may be 
deemed by an employing agency to be sufficient to advise the 
participant that his or her retirement classification had been 
incorrect prior to the change. The one-year time limit will not 
commence with respect to retirement coverage misclassification errors 
unless and until the participant receives a written notice of the error 
that specifically mentions the TSP.
    (2) If a participant fails to file a claim for correction of an 
administrative error in a timely manner (or fails to appeal a denial of 
a claim in a timely manner) under paragraph (b)(1) of this section, the 
agency may still correct any administrative error that is brought to or 
comes to its attention.

Subpart C--Board or TSP Recordkeeper Errors


Sec. 1605.7  Plan-paid lost earnings and other corrections.

    (a) Plan-paid lost earnings. (1) Subject to paragraph (a)(2) of 
this section, if, because of an error committed by the Board or the TSP 
recordkeeper, a participant's account does not receive credit for 
earnings (which may be positive or negative) that it would have 
received had the error not occurred, the account will be credited with 
the difference between the earnings (if any) it actually received and 
the earnings it would have received had the error not occurred. The 
errors that warrant crediting of lost earnings under this paragraph (a) 
include, but are not limited to:
    (i) Board or TSP recordkeeper delay in crediting contributions or 
other monies to a participant's account;
    (ii) Improper issuance of a loan or withdrawal payment to a 
participant or beneficiary which requires the money to be restored to 
the participant's account; and
    (iii) Investment of all or part of a participant's account in the 
wrong TSP investment fund(s) (e.g., improper processing or failure to 
process an interfund transfer request).
    (2) A participant's TSP account will not be credited with earnings 
under paragraph (a)(1) of this section if, during the period the 
participant's account received credit for less earnings than it would 
have received but for the Board or recordkeeper error, the participant 
had the use of the money on which the earnings would have accrued.
    (3) In the case of an error described in paragraph (a)(1)(iii) of 
this section, the affected participant will, upon discovery of the 
error, be given a choice whether or not to have the error corrected. If 
the participant chooses correction, the account will be placed in the 
position it would have attained had the error not occurred, including 
crediting of earnings (positive or negative as the case may be) that 
would have accrued had the error not occurred and reallocation of the 
account balance among the investment funds in the proportions that 
would have existed had the error not occurred.
    (4) Where the participant continued to have a TSP account, or would 
have continued to have a TSP account but for the Board or TSP 
recordkeeper error, earnings under paragraph (a)(1) of this section 
will be computed for the relevant period based upon the investment 
funds in which the affected monies would have been invested had the 
error not occurred. If the period for which lost earnings are paid is a 
period for which the participant did not, and should not, have had an 
account in the TSP, then the earnings will be computed using the G Fund 
rate of return for the relevant period.
    (b) Reversal of loan distributions. If, because of Board or TSP 
recordkeeper error, a TSP loan is declared a taxable distribution under 
circumstances that make such declaration inconsistent with FERSA, 5 CFR 
part 1655, with the provisions of the documents (including 
instructions) signed by or provided to the participant in connection 
with the application for or issuance of the loan, or with other 
procedures established by the Board or TSP recordkeeper in connection 
with the TSP loan program, the taxable distribution will be reversed. 
The participant will be provided an opportunity to reinstate or repay 
in full the outstanding balance on the loan.
    (c) Other corrections. The Executive Director may, in his 
discretion and consistent with the requirements of applicable law, 
correct any other errors not specifically addressed in this section or 
provide any other relief to a participant, including payment of lost 
earnings from the TSP, if the Executive Director determines that the 
correction or relief would serve the interests of justice, fairness, 
and equity among the participants of the TSP.


Sec. 1605.8  Claims for correction of Board or TSP Recordkeeper errors; 
time limitations.

    (a) Filing claims. Claims for correction under this subpart may be 
submitted initially either to the TSP recordkeeper or the Board. The 
claim must be in writing and may be from the affected participant or 
beneficiary or from a representative of the participant or beneficiary. 
The written claim must state the basis for the claim.
    (b) Processing claims. (1) If the initial claim is submitted to the 
TSP recordkeeper, the TSP recordkeeper may either respond directly to 
the participant or the person making the claim on behalf of the 
participant, or may forward the letter to the Board for response. The 
decision whether the TSP recordkeeper should respond directly or 
forward the claim to the Board will be made in accordance with guidance 
and procedures established by the Board or, if no such specific 
guidance is available, in consultation with the Board's staff. If the 
TSP recordkeeper responds to a participant's claim, and all or any part 
of the participant's claim is denied, the participant may request 
review by the Board within 90 days of the date of the recordkeeper's 
response.
    (2) If the Board denies all or any part of a participant's claim 
(whether upon review of a TSP recordkeeper denial or upon an initial 
review by the Board), the participant will be deemed to have exhausted 
his or her administrative remedy and may file suit under 5 U.S.C. 8477. 
If the participant does not submit to the Board a request for review of 
a claim denial by the TSP Recordkeeper within the 90 days permitted 
under paragraph (b)(1) of this section, the participant shall not be 
deemed to have exhausted his or her administrative remedy.
    (c) Time limits for filing claims. (1) Upon discovery of errors 
subject to correction under this subpart, the Board or TSP recordkeeper 
will promptly correct such errors in accordance with this subpart, 
regardless of whether a claim for correction is received from the 
affected participant. If an error has not been corrected by the Board 
or TSP recordkeeper, the affected participant must file a claim for 
correction within one year of the earlier of:
    (i) His or her receipt of a pay stub, earnings and leave statement, 
or other document reflecting the error; or
    (ii) The close of the first TSP election period following the 
participant's receipt of a TSP Participant Statement reflecting the 
error. For purposes of this paragraph (c)(1)(ii) and paragraph 
(c)(1)(i) of this section, in the case of a participant whose 
retirement coverage has been improperly classified, the receipt of a 
document indicating the participant's retirement code classification is 
not, in and of itself, sufficient to notify the participant that

[[Page 56918]]

his or her retirement code classification is incorrect.
    (2) If a participant fails in a timely manner to file a claim for 
correction (or fails in a timely manner to request reconsideration of a 
claim) under paragraph (c)(1) of this section, the Board or TSP 
recordkeeper may still correct any administrative error that is brought 
to or comes to its attention.

Subpart D--Miscellaneous Provisions


Sec. 1605.9  Miscellaneous provisions.

    (a)(1) If all employee contributions are removed from a 
participant's account under the rules set forth in this part, but 
earnings on any of those employee contributions or other residual 
amounts are left in the account, the earnings will remain in the 
account unless the participant was ineligible to have an account in the 
TSP at the time the earnings were credited to the account and remains 
ineligible. In that case, the earnings will be removed from the account 
and used to offset TSP administrative expenses. If earnings remain in 
the account under this paragraph (a), they will be subject to 
withdrawal from the participant's account upon separation from Federal 
employment under the same withdrawal rules as apply to any other money 
in a participant's account.
    (2) If any residual earnings on employer contributions remain in a 
participant's account after all employer contributions have been 
removed from the account, those residual earnings will be removed from 
the account and used to offset TSP administrative expenses.
    (b) If a participant fails to participate in the TSP due to 
circumstances beyond his or her control but not due to circumstances 
attributable to employing agency, Board, or TSP recordkeeper error, the 
participant will be entitled to elect to participate effective not 
later than the first pay period after the participant submits a 
contribution election form (Form TSP-1), regardless of whether the form 
is submitted during an election period. Such belated elections will be 
permitted on a prospective basis only; no makeup contributions will be 
permitted under this part.
    (c) If TSP contributions are invested in the wrong investment 
fund(s) because of employing agency error, that error may be corrected 
only in accordance with 5 CFR 1606.7. Such errors may not be corrected 
under this part.
    (d)(1) The address for the TSP recordkeeper is: National Finance 
Center, TSP Service Office, Post Office Box 61500, New Orleans, LA 
70161-1500.
    (2) The address for the Board is: Federal Retirement Thrift 
Investment Board, 1250 H Street, NW., Washington, DC 20005.

[FR Doc. 96-28083 Filed 11-4-96; 8:45 am]
BILLING CODE 6760-01-P