E6-12895. Court Orders and Legal Processes Affecting Thrift Savings Plan Accounts

AGENCY:

Federal Retirement Thrift Investment Board.

ACTION:

Proposed rule with request for comments.

SUMMARY:

The Executive Director of the Federal Retirement Thrift Investment Board (Agency) proposes to amend the Thrift Savings Plan's (TSP's) regulations to improve processing of court orders that seek to divide a TSP account pursuant to a divorce. The proposed change would limit the types of court orders the Agency would accept to either one that requires payment of a specific dollar amount or that requires payment of a stated percentage or fraction of the account. The change would no longer allow formula court orders.

DATES:

Comments must be received on or before September 8, 2006.

ADDRESSES:

Comments may be sent to Thomas K. Emswiler, General Counsel, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The Agency's fax number is [phone].

FOR FURTHER INFORMATION CONTACT:

Megan Graziano on [phone].

SUPPLEMENTARY INFORMATION:

The Agency administers the 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)).

The Executive Director proposes to amend the Agency's regulations to limit acceptable court orders that divide a TSP account to those that either require payment of a specific dollar amount or that require payment of a stated percentage or fraction of the account.

Currently, the Agency will also accept a court order that requires payment of an amount determined by a formula that yields a mathematically possible result. All variables in the formula must have values that are readily ascertainable.

Formula-based court order are overly complex and often are not acceptable by the Agency or, if acceptable, would result in payments that were not anticipated by either party to the order. As a consequence, the parties must return to court and obtain an amended order. Additionally, the formula court order requires the Agency to interpret the order and results in considerable administrative expense. These expenses are borne by all TSP participants.

The proposed regulation will make it easier for the parties in a divorce to ensure that the Agency will divide a TSP account in accordance with their wishes. The proposed regulation simplifies the types of court orders the Agency will accept. The proposed regulation contains model paragraphs that attorneys can use to ensure that, in drafting orders, the language they select will both produce the intended result and meet the Agency's processing requirements.

Consequently, in order to ensure accuracy of court order payments and to ensure that the administrative expenses of the court order program are reasonable for a retirement savings plan, the Executive Director proposes to amend Agency regulations to limit the types of court orders the Agency will accept to those that either require payment of a specific dollar amount or that require payment of a stated percentage or fraction of the account.

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.

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 § 1532 is not required.

Submission to Congress and the Government Accountability Office

Pursuant to 5 U.S.C. 801(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. section 804(2).

List of Subjects in 5 CFR Part 1653

• Court Orders and Legal Processes Affecting Thrift Savings Plan Accounts

Gary A. Amelio,

Executive Director, Federal Retirement Thrift Investment Board.

For the reasons set forth 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

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

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

2. Amend § 1653.2 by revising paragraphs (a)(3)(iii) and (a)(3)(iv) to read as follows:

§ 1653.2

Qualifying retirement benefits court order.

(a) * * *

(3) * * *

(i) * * *

(ii) * * *

(iii) A survivor annuity as provided in 5 U.S.C. 8435(d).

(iv) The following examples would qualify to require payment from the TSP, although ambiguous or conflicting language used elsewhere could cause the order to be rejected.

Example (1). ORDERED: [payee's name, Social Security number (SSN), and address] is awarded $___ from the [civilian or uniformed services] Thrift Savings Plan account of [participant's name, SSN, and address].

Example (2). ORDERED: [payee's name, SSN, and address] is awarded ___% of the [civilian and/or uniformed services] Thrift Savings Plan account[s] of [participant's name, SSN, and address] as of [date].

Example (3). ORDERED: [payee's name, SSN, and address] is awarded [fraction] of the [civilian and/or uniformed services] Thrift Savings Plan account[s] of [participant's name, SSN, and address] as of [date].

Note:

The following optional language can be used in conjunction with any of the above examples. FURTHER ORDERED: Earnings will be paid on the amount of the entitlement under this ORDER until payment is made.

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