[Federal Register Volume 80, Number 133 (Monday, July 13, 2015)]
[Proposed Rules]
[Pages 39975-39977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16868]


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FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1653


Criminal Restitution Orders

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 procedures for processing criminal restitution 
orders to: (1) Require an enforcement letter from the Department of 
Justice stating that restitution has been ordered under the Mandatory 
Victims Restitution Act; and (2) provide that the Agency will treat a 
judgment ordering restitution under the Mandatory Victims Restitution 
Act as a final judgment. The Agency also proposes to make two technical 
corrections.

DATES: Submit comments on or before August 12, 2015.

ADDRESSES: You may submit comments using one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov at 
Docket ID number FRTIB-2015-0001. Follow the instructions for 
submitting comments.
     Mail: Office of General Counsel, Attn: James Petrick, 
Federal Retirement Thrift Investment Board, 77 K Street NE., Suite 
1000, Washington, DC 20002.
     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.

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

[[Page 39976]]

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)).
    The Agency's governing statute includes an anti-alienation 
provision that generally protects TSP funds from execution, levy, 
attachment, garnishment, or other legal process. 5 U.S.C. 8437(c)(2). 
However, there are exceptions for certain court orders such as criminal 
restitution orders under the Mandatory Victims Restitution Act (MVRA) 
of 1996. The Department of Justice (DOJ) may request a payment from a 
participant's TSP account to enforce a judgment that orders restitution 
under the MVRA.
    On September 10, 2014, the Agency published regulations explaining 
the Agency's procedures for processing payments for the enforcement of 
criminal restitution orders. 79 FR 53603 (September 10, 2014).

Requirement To Provide an Enforcement Letter

    Various statutes grant courts the authority to order, or compel 
them to order, convicted offenders to pay restitution to victims as 
part of their sentences. Only orders for restitution under 18 U.S.C. 
3663A can be enforced against a TSP account.
    Judgments ordering restitution often do not reference the statutory 
authority or statutory mandate under which the court ordered 
restitution. This leaves the Agency to determine the authority or 
mandate under which the court ordered restitution. The Agency believes 
the DOJ is better positioned to determine the authority or mandate 
under which the court ordered restitution. Therefore, the Agency 
proposes to amend 5 CFR part 1653 to require an enforcement letter from 
the DOJ stating that the court ordered restitution under 18 U.S.C. 
3663A. The Agency will rely on the DOJ's assertion that the court 
ordered restitution under 18 U.S.C. 3663A.

Treatment of a Judgment Ordering Restitution Under 18 U.S.C. 3663A as a 
Final Judgment

    The Agency has received requests from several participants to stay 
payment from their TSP accounts pending the outcome of an appeal of a 
judgment ordering restitution under 18 U.S.C. 3663A or the underlying 
conviction. The Agency's policy is to deny such requests and treat the 
judgment as a final judgment. This policy is consistent with 18 U.S.C. 
3664(o), which says that a sentence that imposes an order of 
restitution is a final judgment notwithstanding the fact that it may be 
corrected, amended, or appealed. The Agency proposes to amend 5 CFR 
part 1653 to codify this policy.

Technical Corrections

    Paragraph (c)(5) of Sec.  1653.33 provides that the TSP will not 
honor a criminal restitution order that requires a series of payments. 
The Agency proposes to amend paragraph (c)(5) to provide that the TSP 
will not honor a criminal restitution order that requires ``the TSP to 
make'' a series of payments. The Agency also proposes to replace 
certain references to a ``restitution order'' in 5 CFR part 1653, 
subpart D with the defined term ``criminal restitution order'' to avoid 
any ambiguity with respect to whether the regulations refer to the 
underlying judgment itself or the documents necessary to enforce the 
judgment against a TSP account. For consistency, the Agency also 
proposes to replace certain references to a ``levy'' with the defined 
term ``tax levy.''

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.

Paperwork Reduction Act

    I certify that these proposed 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 
proposed 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.

List of Subjects in 5 CFR Part 1653

    Claims, Government employees, Pensions, Retirement, Taxes.

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 1653--COURT ORDERS AND LEGAL PROCESSES AFFECTING THRIFT 
SAVINGS PLAN ACCOUNTS

0
1. The authority citation for part 1653 continues to read as follows:

    Authority:  5 U.S.C. 8432d, 8435, 8436(b), 8437(e), 8439(a)(3), 
8467, 8474(b)(5), and 8474(c)(1).

0
2. Amend Sec.  1653.31(b), by revising the definition for ``criminal 
restitution order'' and adding a definition for ``enforcement letter'' 
in alphabetical order to read as follows:


Sec.  1653.31  Definitions.

* * * * *
    (b) * * *
    Criminal restitution order means a complete copy of a judgment in a 
criminal case issued by a federal court ordering restitution for a 
crime under 18 U.S.C. 3663A.
    Enforcement letter means a letter received from the Department of 
Justice requesting a payment from a participant's TSP account to 
enforce a criminal restitution order.
* * * * *
0
3. Amend Sec.  1653.33 by:
0
a. Revising paragraph (b)(2) and adding paragraph (b)(3),
0
b. Replacing the words ``restitution order'' wherever they appear not 
preceded by the word ``criminal'' with the words ``criminal restitution 
order'' in paragraphs (c)(1) and (2); and
0
c. Revising paragraphs (c)(3), (c)(5), and (c)(6).
    The revisions read as follows:


Sec.  1653.33  Qualifying criminal restitution order.

* * * * *
    (b) * * *
    (2) The criminal restitution order must require the participant to 
pay a stated dollar amount as restitution.
    (3) The criminal restitution order must be accompanied by an 
enforcement letter that states the restitution is ordered under 18 
U.S.C. 3663A. The enforcement letter must expressly refer to the 
``Thrift Savings Plan'' or describe the TSP in such a way that it 
cannot be confused with other Federal Government retirement benefits or 
non-Federal retirement benefits.

[[Page 39977]]

    (c) * * *
    (3) A criminal restitution order accompanied by an enforcement 
letter that requires the TSP to make a payment in the future;
* * * * *
    (5) A criminal restitution order accompanied by an enforcement 
letter that requires TSP to make a series of payments;
    (6) A criminal restitution order accompanied by an enforcement 
letter that designates the specific TSP Fund, source of contributions, 
or balance from which the payment or portions of the payment shall be 
made.
0
4. Amend Sec.  1653.34 by revising the last sentence of paragraph (b) 
introductory text to read as follows:


Sec.  1653.34  Processing Federal tax levies and criminal restitution 
orders.

* * * * *
    (b) * * * To be complete, a tax levy or criminal restitution order 
must meet all the requirements of Sec.  1653.32 or Sec.  1653.33; it 
must also provide (or be accompanied by a document or enforcement 
letter that provides):
* * * * *
0
5. Amend Sec.  1653.35, by revising the first sentence of the 
introductory text and revising paragraph (a) to read as follows:


Sec.  1653.35  Calculating entitlement.

    A tax levy or criminal restitution order can only require the 
payment of a stated dollar amount from the TSP. The payee's entitlement 
will be the lesser of:
    (a) The dollar amount stated in the tax levy or enforcement letter; 
or
* * * * *
0
6. Amend Sec.  1653.36 by:
0
a. Replacing the word ``levy'' wherever it appears not preceded by the 
word ``tax'' with the words ``tax levy'' in paragraph (a);
0
b. Replacing the words ``restitution order'' wherever they appear not 
preceded by the word ``criminal'' with the words ``criminal restitution 
order'' and by replacing the word ``levy'' wherever it appears not 
preceded by the word ``tax'' with the words ``tax levy'' in paragraph 
(c);
0
c. Revising paragraph (d) introductory text;
0
d. Replacing the word ``levy'' wherever it appears not preceded by the 
word ``tax'' with the words ``tax levy'' in paragraph (g); and
0
e. Adding paragraph (h).
    The revisions and additions read as follows:


Sec.  1653.36  Payment.

* * * * *
    (d) If a participant has funds in more than one type of account, 
payment will be made from each account in the following order, until 
the amount required by the tax levy or stated in the enforcement letter 
is reached:
* * * * *
    (h) The TSP will not hold a payment pending appeal of a criminal 
restitution order or the underlying conviction. The TSP will treat the 
criminal restitution order as a final judgment pursuant to 18 U.S.C. 
3664(o) and process payment as provided by this subpart.

[FR Doc. 2015-16868 Filed 7-10-15; 8:45 am]
 BILLING CODE 6760-01-P