[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Rules and Regulations]
[Pages 43799-43800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18346]



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 Rules and Regulations
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  Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Rules 
and Regulations  

[[Page 43799]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1600


Employee Contribution Elections and Contribution Allocations

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Retirement Thrift Investment Board (Agency) is 
amending its regulations at 5 CFR part 1600. These changes implement 
the Agency's automatic enrollment program as authorized by the Thrift 
Savings Plan Enhancement Act of 2009.

DATES: This rule is effective August 1, 2010.

FOR FURTHER INFORMATION CONTACT: Megan G. Grumbine at 202-942-1644 or 
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)).
    On June 17, 2010, the Agency published a proposed rule with request 
for comments in the Federal Register (75 FR 34388, June 17, 2010). The 
Agency received comments from one Federal employees' union, three 
participants, and one other party.
    The Federal employees' union endorsed the proposed changes. The 
union, however, expressed concern that employing agencies may fail to 
provide clear and timely notice to newly hired or rehired employees 
regarding their rights and obligations under the Agency's automatic 
enrollment program. In response to this comment, the Agency has 
provided employing agencies with a sample notice to send to newly hired 
or rehired employees who are automatically enrolled. The Agency 
promulgated separate guidance that directs employing agencies to 
provide this notice so that employees can take action within the first 
automatic enrollment pay period.
    In addition, the Agency will directly notify new enrollees of their 
right to opt out of the automatic enrollment program and to request a 
refund of default employee contributions. This information will be 
provided in the TSP Welcome Letter sent to all employees upon receipt 
of their first contribution.
    One participant objected to the forfeiture of agency matching 
contributions attributable to refunded default employee contributions. 
The Internal Revenue Service (IRS) mandates forfeiture of matching 
contributions attributable to refunded default employee contributions. 
See ``Automatic Contribution Arrangements'' 74 FR 8200, 8206 (February 
24, 2009). The TSP must follow applicable IRS guidance such as this to 
the extent that it is consistent with FERSA. See 5 U.S.C. Sec.  8440; 
26 U.S.C. 7701(j).
    Another participant suggested that the Agency should not require a 
participant's notarized signature in order to request a refund of 
default employee contributions. The proposed rule does not require a 
notarized signature in order to request a refund of default employee 
contributions. In practice, however, the Agency will soon require a 
notarized signature for all withdrawal requests, including a request 
for a refund of default employee contributions, as a measure to protect 
participants' TSP accounts from fraudulent withdrawals.
    One commenter requested affirmation that contribution elections and 
contribution allocations differ with respect to their effect on a 
participant's continued coverage under the automatic enrollment 
program. A participant who makes only a contribution allocation will 
continue to receive default employee contributions until he or she 
files a contribution election or elects not to have any default 
employee contributions made on his or her behalf. In contrast, section 
1600.34(b) of the proposed rule provides that a participant will no 
longer be considered to be covered by the automatic enrollment program 
if the participant makes a contribution election, i.e., elects to have 
contributions made in a different amount or percentage of basic pay. 
Section 1600.34(b) of the proposed rule reflects section 1.414(w)-
1(e)(2)(ii) of the Internal Revenue Service's regulation governing 
refunds from automatic contribution arrangements. 26 CFR Sec.  
1.414(w)-1(e)(2)(ii).
    A participant who is no longer automatically enrolled by reason of 
having made a contribution election will retain the right to request a 
refund within 90 days following the date of the first default employee 
contribution made to his or her account. However, the amount of the 
refund will be limited to the amount of the default employee 
contributions (adjusted for allocable gains and losses) made during the 
period in which the participant was considered automatically enrolled.
    One participant recommended that the TSP provide participants with 
options to self direct investment of their retirement funds. This 
comment is outside the scope of the proposed rule.
    The Agency appreciates the opportunity to review and respond to 
comments from participants who take an active interest in the TSP and 
offer suggestions. The comment process allowed the Agency to address 
any misunderstandings about the proposed change, to learn if there are 
unanticipated legal or policy impediments to the proposed change, and 
to hear suggestions about how better to implement the proposed change. 
Although the comments received did not cause the Executive Director to 
make any changes to the text of the proposed rule, he did carefully 
consider all comments received and addressed some of the concerns 
through other Agency guidance. Therefore, the Agency is publishing the 
proposed rule as final without change.

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 who participate in the Thrift Savings Plan, 
which is a Federal defined contribution retirement savings plan

[[Page 43800]]

created under the Federal Employees' Retirement System Act of 1986, 
Pub. L. No. 99-335, 100 Stat. 514, and administered by the Agency.

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 Sec.  
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. 814(2).

List of Subjects in 5 CFR Part 1600

    Government employees, Pensions, Retirement.

Gregory T. Long,
Executive Director, Federal Retirement Thrift Investment Board.

0
For the reasons stated in the preamble, the Agency amends 5 CFR part 
1600 as follows:

PART 1600--EMPLOYEE CONTRIBUTION ELECTIONS AND CONTRIBUTION 
ALLOCATIONS

0
1. The authority citation for part 1600 continues to read as follows:

    Authority:  5 U.S.C. 8351, 8432(a), 8432(b), 8432(c), 8432(j), 
8474(b)(5) and (c)(1), Thrift Savings Plan Enhancement Act of 2009, 
section 102.


0
2. Revise the heading to part 1600 to read as follows:

PART 1600--EMPLOYEE CONTRIBUTION ELECTIONS, CONTRIBUTION 
ALLOCATIONS, AND AUTOMATIC ENROLLMENT PROGRAM


0
3. Add subpart E to read as follows:

Subpart E--Automatic Enrollment Program

1600.34 Automatic Enrollment Program
1600.35 Refunds
1600.36 Matching Contributions
1600.37 Employing Agency Notice

    Authority:  Sec. 102, Pub. L. 111-31, div. B. tit. I, 123 Stat. 
1776, 1853 (5 U.S.C. 8432(b)(2)(A)).


Sec.  1600.34  Automatic Enrollment Program.

    (a) All newly hired Federal employees who are eligible to 
participate in the Thrift Savings Plan and those Federal employees who 
are rehired after a separation in service of 31 or more calendar days 
and who are eligible to participate in the TSP will automatically have 
3 percent of their basic pay contributed to the TSP (default employee 
contribution) unless they elect to not contribute or elect to 
contribute at some other level by the end of the employee's first pay 
period (subject to the agency's processing timeframes).
    (b) After being automatically enrolled, a participant may elect to 
terminate default employee contributions or change his or her 
contribution percentage or amount at any time.


Sec.  1600.35  Refunds of default employee contributions.

    (a) A participant may request a refund of any default employee 
contributions made on his or her behalf (i.e., the contributions made 
while under the automatic enrollment program) provided the request is 
received within 90 days after the date that the first default employee 
contribution was processed. The election must be made on the TSP's 
refund request form and must be received by the TSP's record keeper 
prior to the expiration of the 90-day period.
    (1) The distribution of a refund will be reported as income to the 
participant on IRS Form 1099-R, but it will not be subject to the 
additional tax under 26 U.S.C. 72(t) (the early withdrawal penalty 
tax).
    (2) A participant who requests a refund will receive the amount of 
any default employee contributions (adjusted for allocable gains and 
losses).
    (3) Processing of refunds will be subject to the rules set out at 5 
CFR part 1650.
    (b) A participant will no longer be considered to be covered by the 
automatic enrollment program if the participant files a contribution 
election. Consequently, if a participant makes a contribution election 
during the 90-day period, the participant will only be eligible to 
receive as a refund an amount equal to his or her default employee 
contributions (adjusted for allocable gains and losses).
    (c) After the expiration of the period allowed for the refund, any 
withdrawal must be made pursuant to 5 U.S.C. 8433 and 5 CFR part 1650.
    (d) A married participant may request a refund of default employee 
contributions without obtaining the consent of his or her spouse or 
having the TSP notify the spouse of the request.
    (e) The rules applicable to frozen accounts (5 CFR 1650.3) and 
applicable to deceased participants (5 CFR 1650.6) also apply to 
refunds of the default employee contributions.


Sec.  1600.36  Matching Contributions.

    (a) A participant is not entitled to keep the matching 
contributions and their associated earnings that are attributable to 
refunded default employee contributions.
    (b) The matching contributions and associated earnings attributable 
to refunded default employee contributions shall be forfeited to the 
TSP and used to offset administrative expenses.


Sec.  1600.37  Employing Agency Notice.

    Employing agencies shall furnish all new employees and all rehired 
employees covered by the automatic enrollment program a notice that 
accurately describes:
    (a) That default employee contributions equal to 3 percent of the 
employee's basic pay will be deducted from his or her pay and 
contributed to the TSP on the employee's behalf if the employee does 
not make an affirmative election;
    (b) The employee's right to elect to not have default employee 
contributions made to the TSP on his or her behalf or to elect to have 
a different percentage or amount of basic pay contributed to the TSP;
    (c) That the default employee contributions will be invested in the 
G Fund unless the employee makes a contribution allocation and/or an 
interfund transfer; and
    (d) The employee's ability to request a refund of any default 
employee contributions (adjusted for allocable gains and losses) and 
the procedures to request such a refund.

[FR Doc. 2010-18346 Filed 7-26-10; 8:45 am]
BILLING CODE 6760-01-P