[Federal Register Volume 75, Number 11 (Tuesday, January 19, 2010)]
[Proposed Rules]
[Pages 2822-2823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-769]


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FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1631


Availability of Records

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Federal Retirement Thrift Investment Board (Agency) 
proposes to amend its regulations on availability of records to 
establish the manner of service for administrative subpoenas issued by 
the Agency and to delegate authority to the Agency's General Counsel to 
issue administrative subpoenas. These changes implement section 107 of 
the Thrift Savings Plan Enhancement Act of 2009, which gave the Agency 
authority to issue subpoenas duces tecum in order to carry out the 
Agency's functions.

DATES: Comments must be received on or before February 18, 2010.

ADDRESSES: You may submit comments using one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Office of General Counsel, Attn: Thomas Emswiler, 
Federal Retirement Thrift Investment Board, 1250 H Street, NW., 
Washington, DC 20005.
     Hand Delivery/Courier: The address for sending comments by 
hand delivery or courier is the same as that for submitting comments by 
mail.
     Facsimile: Comments may be submitted by facsimile at (202) 
942-1676.
    The most helpful comments explain the reason for any recommended 
change and include data, information, and the authority that supports 
the recommended change. We will post all substantive comments 
(including any personal information provided) without change (with the 
exception of redaction of SSNs, profanities, et cetera) on 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Laurissa Stokes at 202-942-1645.

SUPPLEMENTARY INFORMATION: The Agency administers the Thrift Savings 
Plan (TSP), which was established by the Federal Employees' Retirement 
System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP 
provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 
and 8401-79. The TSP is a tax-deferred retirement savings plan for 
Federal civilian employees and members of the uniformed services. The 
TSP is similar to cash or deferred arrangements established for 
private-sector employees under section 401(k) of the Internal Revenue 
Code (26 U.S.C. 401(k)).

Issuance of Subpoenas

    Section 107 of the Thrift Savings Plan Enhancement Act of 2009 
(``the Act''), Public Law 111-31 (123 Stat. 1776, 1853) (codified at 5 
U.S.C. 8480) authorizes the Agency to issue administrative subpoenas to 
compel production of designated books, documents, records, 
electronically stored information, or tangible things. This proposed 
regulation would establish three means by which the Agency may serve an 
administrative subpoena: (1) Certified or registered mail, return 
receipt requested, (2) fax or electronic transmission, provided the 
subpoenaed party gives prior approval, or (3) personal delivery at the 
principal place of business or the last known residential address of 
the subpoenaed party. This proposed regulation would also delegate 
authority to the General Counsel to issue administrative subpoenas.
    The Agency, like other financial institutions, has been the subject 
of fraudulent withdrawals from its participants' accounts. The Agency 
anticipates using its subpoena authority to obtain information 
necessary to prevent or investigate fraudulent or otherwise improper 
routing of participants' money to financial institutions. The Agency, 
therefore, needs an expeditious means to obtain information from 
financial institutions to which participants' money is transferred. 
Prompt action and cooperation from financial institutions is the best 
way to recover or deter fraudulent or improper routing of participants' 
money.
    Allowing the use of several alternative means to accomplish service 
is intended to facilitate expeditious cooperation between the Agency 
and financial institutions in an effort to prevent or investigate 
fraudulent withdrawals and transfers. Delegation to the General Counsel 
of the authority to issue administrative subpoenas is intended to 
expedite the issuances of subpoenas,

[[Page 2823]]

e.g. by removing the need for the staff of the Office of General 
Counsel to seek Executive Director approval for issuances that are 
routine or urgent.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities. This regulation will 
affect Federal employees and members of the uniformed services who 
participate in the Thrift Savings Plan, which is a Federal defined 
contribution retirement savings plan created under the Federal 
Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 
100 Stat. 514, and which is administered by the Agency. Although it 
will also occasionally require financial institutions to provide 
information, such entities rarely constitute small entities. 
Additionally, this regulation provides the Agency with no new 
authority; it merely provides guidance on existing statutory authority.

Paperwork Reduction Act

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

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 
632, 653, 1501-1571, the effects of this regulation on state, local, 
and tribal governments and the private sector have been assessed. This 
regulation will not compel the expenditure in any one year of $100 
million or more by state, local, and tribal governments, in the 
aggregate, or by the private sector. Therefore, a statement under 
section 1532 is not required.

Submission to Congress and the General Accounting Office

    Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency 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 
United States before publication of this rule in the Federal Register. 
This rule is not a major rule as defined at 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 1631

    Government employees, Courts, Freedom of information.

Gregory T. Long,
Executive Director, Federal Retirement Thrift Investment Board.
    For the reasons stated in the preamble, the Agency proposes to 
amend 5 CFR chapter VI as follows:

PART 1631--AVAILABILITY OF RECORDS

    1. Remove the existing authority citation for part 1631.

Subpart A--[Amended]

    2. Add an authority citation to subpart A of part 1631 to read as 
follows:

    Authority: 5 U.S.C. 552.

Subpart B--[Amended]

    3. Add an authority citation to subpart B of part 1631 to read as 
follows:

    Authority:  5 U.S.C. 552.

    4. Add subpart C to subpart 1631 to read as follows:
Subpart C--Administrative Subpoenas
Sec.
1631.40 Subpoena authority.
1631.41 Production of records.
1631.42 Service.
1631.43 Enforcement.

Subpart C--Administrative Subpoenas

    Authority:  5 U.S.C. 8480.


Sec.  1631.40  Subpoena authority.

    The Executive Director or General Counsel may issue subpoenas 
pursuant to 5 U.S.C. 8480. The General Counsel may delegate this 
authority to a Deputy General Counsel, Associate General Counsel, or 
Assistant General Counsel.


Sec.  1631.41  Production of records.

    A subpoena may require the production of designated books, 
documents, records, electronically stored information, or tangible 
materials in the possession or control of the subpoenaed party when the 
individual signing the subpoena has determined that production is 
necessary to carry out any of the Agency's functions.


Sec.  1631.42  Service.

    (a) Return of service. Each subpoena shall be accompanied by a 
Return of Service certificate stating the date and manner of service 
and the names of the persons served.
    (b) Methods of service. Subpoenas shall be served by one of the 
following methods:
    (1) Certified or registered mail, return receipt requested to the 
principal place of business or the last known residential address of 
the subpoenaed party.
    (2) Fax or electronic transmission to the subpoenaed party or the 
subpoenaed party's counsel, provided the subpoenaed party gives prior 
approval.
    (3) Personal delivery at the principal place of business or 
residence of the subpoenaed party during normal business hours.


Sec.  1631.43  Enforcement.

    Upon the failure of any party to comply with a subpoena, the 
General Counsel shall request that the Attorney General seek 
enforcement of the subpoena in the appropriate United States district 
court.

[FR Doc. 2010-769 Filed 1-15-10; 8:45 am]
BILLING CODE 6760-01-P