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  <FDSYS>
    <CFRTITLE>5</CFRTITLE>
    <CFRTITLETEXT>Administrative Personnel</CFRTITLETEXT>
    <VOL>3</VOL>
    <DATE>1998-01-01</DATE>
    <ORIGINALDATE>1998-01-01</ORIGINALDATE>
    <COVERONLY>false</COVERONLY>
    <TITLE>CORRECTION OF ADMINISTRATIVE ERRORS</TITLE>
    <GRANULENUM>1605</GRANULENUM>
    <HEADING>PART 1605</HEADING>
    <ANCESTORS>
      <PARENT HEADING="" SEQ="1"/>
    </ANCESTORS>
  </FDSYS>
  <PART>
    <EAR>Pt. 1605</EAR>
    <HD SOURCE="HED">PART 1605—CORRECTION OF ADMINISTRATIVE ERRORS</HD>
    <CONTENTS>
      <SUBPART>
        <HD SOURCE="HED">Subpart A—Definitions</HD>
        <SECHD>Sec.</SECHD>
        <SECTNO>1605.1</SECTNO>
        <SUBJECT>Definitions.</SUBJECT>
      </SUBPART>
      <SUBPART>
        <HD SOURCE="HED">Subpart B—Employing Agency Errors</HD>
        <SECTNO>1605.2</SECTNO>
        <SUBJECT>Makeup of missed or insufficient contributions.</SUBJECT>
        <SECTNO>1605.3</SECTNO>
        <SUBJECT>Removal of erroneous contributions.</SUBJECT>
        <SECTNO>1605.4</SECTNO>
        <SUBJECT>Back pay awards and other retroactive pay adjustments.</SUBJECT>
        <SECTNO>1605.5</SECTNO>
        <SUBJECT>Misclassification of retirement coverage.</SUBJECT>
        <SECTNO>1605.6</SECTNO>
        <SUBJECT>Procedures for claims against employing agencies; time limitations.</SUBJECT>
      </SUBPART>
      <SUBPART>
        <HD SOURCE="HED">Subpart C—Board or TSP Recordkeeper Errors</HD>
        <SECTNO>1605.7</SECTNO>
        <SUBJECT>Plan-paid lost earnings and other corrections.</SUBJECT>
        <SECTNO>1605.8</SECTNO>
        <SUBJECT>Claims for correction of Board or TSP Recordkeeper errors; time limitations.</SUBJECT>
      </SUBPART>
      <SUBPART>
        <HD SOURCE="HED">Subpart D—Miscellaneous Provisions</HD>
        <SECTNO>1605.9</SECTNO>
        <SUBJECT>Miscellaneous provisions.</SUBJECT>
      </SUBPART>
    </CONTENTS>
    <AUTH>
      <HD SOURCE="HED">Authority:</HD>
      <P>5 U.S.C. 8351 and 8474.</P>
    </AUTH>
    <SOURCE>
      <HD SOURCE="HED">Source:</HD>
      <P>61 FR 68472, Dec. 27, 1996, unless otherwise noted.</P>
    </SOURCE>
    <SUBPART>
      <HD SOURCE="HED">Subpart A—Definitions</HD>
      <SECTION>
        <SECTNO>§ 1605.1</SECTNO>
        <SUBJECT>Definitions.</SUBJECT>
        <P>The following definitions apply for purposes of this part:</P>
        <P>
          <E T="03">Account</E> or <E T="03">TSP account</E> means a participant's account in the Thrift Savings Plan;</P>
        <P>
          <E T="03">Agency automatic (1%) contributions</E> means any contributions made under 5 U.S.C. 8432 (c)(1) or (c)(3);</P>
        <P>
          <E T="03">Agency contributions</E> means agency automatic (1%) contributions and agency matching contributions;</P>
        <P>
          <E T="03">Agency matching contributions</E> means any contributions made under 5 U.S.C. 8432(c)(2);</P>
        <P>
          <E T="03">Basic pay</E> means basic pay as defined in 5 U.S.C. 8331(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;</P>
        <P>
          <E T="03">Board</E> means the Federal Retirement Thrift Investment Board;</P>
        <P>
          <E T="03">Board error</E> 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);</P>
        <P>
          <E T="03">C Fund</E> means the Common Stock Index Investment Fund established under 5 U.S.C. 8438(b)(1)(C);</P>
        <P>
          <E T="03">CSRS</E> 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;</P>
        <P>
          <E T="03">CSRS employee</E> or <E T="03">CSRS participant</E> means any employee, member, or participant covered by CSRS, including employees authorized to contribute to <PRTPAGE P="177"/>the Thrift Savings Plan under 5 U.S.C. 8351, or 5 U.S.C. 8440a through 8440d;</P>
        <P>
          <E T="03">Employee contributions</E> 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;</P>
        <P>
          <E T="03">Employer contributions</E> means agency automatic (1%) contributions and agency matching contributions;</P>
        <P>
          <E T="03">Employing agency</E> 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;</P>
        <P>
          <E T="03">Employing agency error</E> 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;</P>
        <P>
          <E T="03">Executive Director</E> means the Executive Director of the Board under 5 U.S.C. 8474;</P>
        <P>
          <E T="03">F Fund</E> means the Fixed Income Investment Fund established under 5 U.S.C. 8438(b)(1)(B);</P>
        <P>
          <E T="03">FERS</E> means the Federal Employees’ Retirement System established by chapter 84 of title 5, U.S.C., and any equivalent Federal Government retirement plans;</P>
        <P>
          <E T="03">FERS employee</E> or <E T="03">FERS participant</E> means any employee, member, or participant covered by FERS;</P>
        <P>
          <E T="03">G Fund</E> means the Government Securities Investment Fund established under 5 U.S.C. 8438(b)(1)(A);</P>
        <P>
          <E T="03">Interfund transfer</E> means the movement of all or a portion of a participant's existing account balance among the TSP investment funds;</P>
        <P>
          <E T="03">Investment fund</E> means the C Fund, the F Fund, the G Fund, and any other TSP investment funds created subsequent to December 27, 1996.</P>
        <P>
          <E T="03">Investment fund election</E> means a choice by a participant concerning how TSP contributions shall be allocated among the TSP investment funds;</P>
        <P>
          <E T="03">Lost earnings record</E> means a data record containing information enabling the TSP system to compute lost earnings and to determine the investment fund in which money would have been invested had an error not occurred;</P>
        <P>
          <E T="03">Makeup contributions</E> 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;</P>
        <P>
          <E T="03">Negative adjustment record</E> means a data record submitted by an employing agency to remove money from a participant's account;</P>
        <P>
          <E T="03">Open season</E> 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;</P>
        <P>
          <E T="03">Participant</E> means any person with an account in the TSP, or who would have an account in the TSP but for an employing agency error;</P>
        <P>
          <E T="03">Recordkeeper error</E> 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);</P>
        <P>
          <E T="03">Source of contributions</E> means either employee contributions, agency automatic (1%) contributions, or agency matching contributions;</P>
        <P>
          <E T="03">Thrift Savings Plan, TSP,</E> or <E T="03">Plan</E> 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</P>
        <P>
          <E T="03">TSP Recordkeeper</E> 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 <PRTPAGE P="178"/>States Department of Agriculture, located in New Orleans, Louisiana.</P>
      </SECTION>
    </SUBPART>
    <SUBPART>
      <HD SOURCE="HED">Subpart B—Employing Agency Errors</HD>
      <SECTION>
        <SECTNO>§ 1605.2</SECTNO>
        <SUBJECT>Makeup of missed or insufficient contributions.</SUBJECT>
        <P>(a) <E T="03">Applicability.</E> 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.</P>
        <P>(b) <E T="03">Missed employer contributions.</E> 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:</P>
        <P>(1) The employing agency must promptly submit, in a lump sum, all such missed contributions to the TSP record keeper 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.</P>
        <P>(2) If applicable, the employing agency must also submit any lost earnings records required under 5 CFR Part 1606.</P>
        <P>(c) <E T="03">Missed employee contributions.</E> 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:</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>

        <P>(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 <PRTPAGE P="179"/>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.</P>
        <P>(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 the maximum number of pay periods the participant has to complete the schedule of makeup contributions.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(11) If applicable, the employing agency must submit any lost earnings records required under 5 CFR Part 1606.</P>
      </SECTION>
      <SECTION>
        <PRTPAGE P="180"/>
        <SECTNO>§ 1605.3</SECTNO>
        <SUBJECT>Removal of erroneous contributions.</SUBJECT>
        <P>(a) <E T="03">Applicability.</E> 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).</P>
        <P>(b) <E T="03">Negative adjustment records.</E> (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.</P>
        <P>(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.</P>
        <P>(c) <E T="03">Processing negative adjustment records.</E> Negative adjustment records will be processed in accordance with the following rules:</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>

        <P>(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.<PRTPAGE P="181"/>
        </P>

        <P>(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), <E T="03">pro rata,</E> based on the participant's total account balance in each investment fund for that source of contributions.</P>
        <P>(d) <E T="03">Employee contributions.</E> The following rules apply to removal of employee contributions from a participant's account:</P>
        <P>(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 § 1605.9(a), the investment earnings on the erroneous contribution will remain in the participant's account.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(e) <E T="03">Employer contributions.</E> The following rules apply to removal of employer contributions from a participant's account:</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
      </SECTION>
      <SECTION>
        <SECTNO>§ 1605.4</SECTNO>
        <SUBJECT>Back pay awards and other retroactive pay adjustments.</SUBJECT>
        <P>(a) <E T="03">Participant not employed.</E> 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:</P>
        <P>(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.</P>

        <P>(2) The participant must be given the following options for electing makeup contributions:<PRTPAGE P="182"/>
        </P>
        <P>(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 contri bution 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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(b) <E T="03">Participant employed.</E> 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:</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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 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 § 1605.3(c).</P>

        <P>(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 <PRTPAGE P="183"/>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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
      </SECTION>
      <SECTION>
        <SECTNO>§ 1605.5</SECTNO>
        <SUBJECT>Misclassification of retirement coverage.</SUBJECT>
        <P>(a) If a CSRS participant is misclassified by an employing agency as a FERS participant, when the mis-classification is corrected—</P>
        <P>(1) The employing agency must, under § 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</P>
        <P>(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.</P>
        <P>(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 § 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 § 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.</P>
      </SECTION>
      <SECTION>
        <SECTNO>§ 1605.6</SECTNO>
        <SUBJECT>Procedures for claims against employing agencies; time limitations.</SUBJECT>
        <P>(a) <E T="03">Agency procedures.</E> 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:</P>

        <P>(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 <PRTPAGE P="184"/>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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(b) <E T="03">Time limit for filing claims.</E> (1)(i) 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:</P>
        <P>(A) Receipt of a pay stub, earnings and leave statement, or other document reflecting the error; or</P>
        <P>(B) The close of the first TSP election period following the participant's receipt of a TSP Participant Statement reflecting the error.</P>
        <P>(ii) For purposes of paragraphs (b)(1)(i)(A) and (b)(1)(i)(B) 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 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.</P>
        <P>(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.</P>
      </SECTION>
    </SUBPART>
    <SUBPART>
      <HD SOURCE="HED">Subpart C—Board or TSP Recordkeeper Errors</HD>
      <SECTION>
        <SECTNO>§ 1605.7</SECTNO>
        <SUBJECT>Plan-paid lost earnings and other corrections.</SUBJECT>
        <P>(a) <E T="03">Plan-paid lost earnings.</E> (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 <PRTPAGE P="185"/>occurred. The errors that warrant crediting of lost earnings under this paragraph (a) include, but are not limited to:</P>
        <P>(i) Board or TSP recordkeeper delay in crediting contributions or other monies to a participant's account;</P>
        <P>(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</P>
        <P>(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).</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(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.</P>
        <P>(b) <E T="03">Reversal of loan distributions.</E> 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.</P>
        <P>(c) <E T="03">Other corrections.</E> 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.</P>
      </SECTION>
      <SECTION>
        <SECTNO>§ 1605.8</SECTNO>
        <SUBJECT>Claims for correction of Board or TSP Recordkeeper errors; time limitations.</SUBJECT>
        <P>(a) <E T="03">Filing claims.</E> 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.</P>
        <P>(b) <E T="03">Processing claims.</E> (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 <PRTPAGE P="186"/>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.</P>
        <P>(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.</P>
        <P>(c) <E T="03">Time limits for filing claims.</E> (1)(i) 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:</P>
        <P>(A) His or her receipt of a pay stub, earnings and leave statement, or other document reflecting the error; or</P>
        <P>(B) The close of the first TSP election period following the participant's receipt of a TSP Participant Statement reflecting the error.</P>
        <P>(ii) For purposes of paragraphs (c)(1)(i)(A) and (c)(1)(i)(B) 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 his or her retirement code classification is incorrect.</P>
        <P>(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.</P>
      </SECTION>
    </SUBPART>
    <SUBPART>
      <HD SOURCE="HED">Subpart D—Miscellaneous Provisions</HD>
      <SECTION>
        <SECTNO>§ 1605.9</SECTNO>
        <SUBJECT>Miscellaneous provisions.</SUBJECT>
        <P>(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 paid to the ineligible participant. 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.</P>
        <P>(2) If any residual earnings on employer contributions remain in a participant's account after all employer have been removed from the account, those residual earnings will be removed from the account and used to offset TSP administrative expenses.</P>
        <P>(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.</P>
        <P>(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.</P>

        <P>(d)(1) The address for the TSP recordkeeper is: National Finance Center, TSP Service Office, Post Office Box 61500, New Orleans, LA 70161-1500.<PRTPAGE P="187"/>
        </P>
        <P>(2) The address for the Board is: Federal Retirement Thrift Investment Board, 1250 H Street, N.W., Washington, DC 20005.</P>
        <CITA>[61 FR 68472, Dec. 27, 1996, as amended at 62 FR 48936, Sept. 18, 1997]</CITA>
      </SECTION>
    </SUBPART>
  </PART>
</CFRGRANULE>
