Overpayments From the Foreign Service Retirement and Disability Fund, 16228-16231 [06-3136]
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Federal Register / Vol. 71, No. 62 / Friday, March 31, 2006 / Rules and Regulations
Final rule; technical
amendment.
ACTION:
The Food and Drug
Administration (FDA) is issuing this
final rule to correct some inadvertent
typographical errors and other minor
errors in certain device regulations. FDA
intends for these corrections to improve
the accuracy of the agency’s regulations.
EFFECTIVE DATE: March 31, 2006.
FOR FURTHER INFORMATION CONTACT:
Philip Desjardins, Center for Devices
and Radiological Health (HFZ–215),
Food and Drug Administration, 1350
Piccard Dr., Rockville, MD 20850, 240–
276–2343.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Highlights of Final Rule
FDA is making the following changes
to correct typographical and other minor
errors in certain device regulations:
1. FDA is amending 21 CFR
814.126(b)(1)(iv) to replace ‘‘8dd’’ with
‘‘803.’’
2. FDA is amending 21 CFR
820.198(a)(3) to eliminate a reference to
part 804, a part that does not exist.
hsrobinson on PROD1PC61 with RULES
II. Environmental Impact
The agency has determined under 21
CFR 25.30(i) that this action is of a type
that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
III. Analysis of Impacts
FDA has examined the impacts of the
final rule under Executive Order 12866
and the Regulatory Flexibility Act (5
U.S.C. 601–612), and the Unfunded
Mandates Reform Act of 1995 (Public
Law 104–4). Executive Order 12866
directs agencies to assess all costs and
benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity). The agency
believes that this final rule is not a
significant regulatory action under the
Executive order.
The Regulatory Flexibility Act
requires agencies to analyze regulatory
options that would minimize any
significant impact of a rule on small
entities. Because this rule corrects only
typographical errors in existing
regulations and does not change in any
way how devices are regulated, the
agency certifies that the final rule will
not have a significant economic impact
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on a substantial number of small
entities.
Section 202(a) of the Unfunded
Mandates Reform Act of 1995 requires
that agencies prepare a written
statement, which includes an
assessment of anticipated costs and
benefits, before proposing ‘‘any rule that
includes any Federal mandate that may
result in the expenditure by State, local,
and tribal governments, in the aggregate,
or by the private sector, of $100,000,000
or more (adjusted annually for inflation)
in any one year.’’ The current threshold
after adjustment for inflation is $115
million, using the most current (2003)
Implicit Price Deflator for the Gross
Domestic Product. FDA does not expect
this final rule to result in any 1-year
expenditure that would meet or exceed
this amount.
IV. Paperwork Reduction Act of 1995
FDA has determined that this final
rule contains no collections of
information. Therefore, clearance by the
Office of Management and Budget under
the Paperwork Reduction Act of 1995 is
not required.
V. Federalism
FDA has analyzed this final rule in
accordance with the principles set forth
in Executive Order 13132. FDA has
determined that the rule does not
contain policies that have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Accordingly, the
agency has concluded that the rule does
not contain policies that have
federalism implications as defined in
the Executive order and, consequently,
a federalism summary impact statement
is not required.
List of Subjects
21 CFR Part 814
Administrative practice and
procedure, Confidential business
information, Institutional review board
requirements, Medical devices, Medical
research, Reporting and recordkeeping
requirements.
21 CFR Part 820
Medical devices, Reporting and
recordkeeping requirements.
I Therefore, under the Federal Food,
Drug, and Cosmetic Act, and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR parts 814
and 820 are amended as follows:
PART 814—PREMARKET APPROVAL
OF MEDICAL DEVICES
1. The authority citation for 21 CFR
part 814 continues to read as follows:
I
Authority: 21 U.S.C. 351, 352, 353, 360,
360c–360j, 371, 372, 373, 374, 375, 379, 379e,
381.
2. Amend paragraph (b)(1)(iv) of
§ 814.126 by removing ‘‘part 8dd’’ and
adding in its place ‘‘part 803’’.
I
PART 820—QUALITY SYSTEM
REGULATION
3. The authority citation for 21 CFR
part 820 continues to read as follows:
I
Authority: 21 U.S.C. 351, 352, 360, 360c,
360d, 360e, 360h, 360i, 360j, 360l, 371, 374,
381, 383.
4. Amend paragraph (a)(3) of
§ 820.198 by removing ‘‘or 804’’.
I
Dated: March 24, 2006.
Linda S. Kahan,
Deputy Director, Center for Devices and
Radiological Health.
[FR Doc. 06–3089 Filed 3–30–06; 8:45 am]
BILLING CODE 4160–01–S
VI. The Technical Amendments
This rule corrects certain minor errors
in existing regulations. This
administrative action is limited to
correcting typographical errors and
eliminating a reference to a nonexistent
Code of Federal Regulations (CFR) part.
It makes no changes in substantive
requirements.
Because the final rule is an
administrative action, FDA has
determined that it has no substantive
impact on the public. It imposes no
costs, and merely makes technical
administrative changes in the CFR for
the convenience of the public. FDA,
therefore, for good cause, finds under 5
U.S.C. 553(b)(3)(B) and (d)(3) that notice
and public comment are unnecessary.
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DEPARTMENT OF STATE
22 CFR Part 17
[Public Notice 5311]
Overpayments From the Foreign
Service Retirement and Disability Fund
Department of State.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Department of State is
revising its regulations regarding
overpayments from the Foreign Service
Retirement and Disability Fund under
the Foreign Service Retirement and
Disability System (FSRDS) to reflect
internal Department restructuring and
realignment of responsibilities and the
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creation of the Foreign Service Pension
System (FSPS).
DATES: This rule is effective May 1,
2006.
You may submit comments
by any of the following methods:
• E-mail: SkipperK@state.gov
• Mail paper submissions to the
Deputy Assistant Secretary for Global
Financial Services, Charleston Financial
Service Center, P.O. Box 150008,
Charleston, S.C. 29415–5008.
Persons with access to the internet
may also view this notice by going to
the regulations.gov Web site at: https://
www.regulations.gov/index.cfm.
FOR FURTHER INFORMATION CONTACT:
Kathryn Nutt Skipper, Office of the
Legal Adviser, telephone 202–647–4278.
SUPPLEMENTARY INFORMATION: This rule
revises the Department of State’s
regulations regarding overpayments
from the Foreign Service Retirement and
Disability Fund under the Foreign
Service Retirement and Disability
System (FSRDS) to reflect internal
Department restructuring and
realignment of responsibilities and the
creation of the Foreign Service Pension
System (FSPS).
This regulation establishes procedures
for notifying individuals of their rights
if they have received an overpayment
from the Foreign Service Retirement and
Disability Fund under Chapter 8 of the
Foreign Service Act of 1980, as
amended, including their right to
contest the determination that there has
been an overpayment and the right to
request a waiver of recovery of the
overpayment. This part also provides
the procedures for administrative
determination of these rights and for
appeals of negative determinations.
ADDRESSES:
Regulatory Analysis
private sector, of $100 million or more
in any one year and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Small Business Regulatory Enforcement
Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement Act of
1996 (5 U.S.C. 804). This rule will not
result in an annual effect on the
economy of $100 million or more; a
major increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
Executive Order 12866
The Department does not consider
this rule to be a ‘‘significant regulatory
action’’ under Executive Order 12866,
section 3(f), Regulatory Planning and
Review. In addition, the Department is
exempt from Executive Order 12866
except to the extent that it is
promulgating regulations in conjunction
with a domestic agency that are
significant regulatory actions. The
Department has nevertheless reviewed
the regulation to ensure its consistency
with the regulatory philosophy and
principles set forth in the Executive
Order.
Executive Order 12988
Administrative Procedures Act
No notice of proposed rulemaking is
required under the Administrative
Procedure Act (APA) because these
rules relate solely to agency procedure
and practice (5 U.S.C. 553(b)(3)(A)).
The Department has reviewed this
regulation in light of sections 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform, to eliminate ambiguity,
minimize litigation, establish clear legal
standards, and reduce burden.
Regulatory Flexibility Act
Executive Order 13132
hsrobinson on PROD1PC61 with RULES
The Department, in accordance with
the Regulatory Flexibility Act (5 U.S.C.
605(b)), has reviewed this regulation
and, by approving it, certifies that this
final rule will not have a significant
economic impact on a substantial
number of small entities.
Unfunded Mandated Reform Act of
1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
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This regulation will not have
substantial direct effects on the States,
the relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, the
Department determines that this rule
does not have sufficient federalism
implications to require consultations or
warrant the preparation of a federalism
summary impact statement.
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Executive Order 12372
This regulation does not require
review under Executive Order 12372,
Intergovernmental Review of Federal
Programs.
Paperwork Reduction Act
This rule does not impose any new
reporting or recordkeeping requirements
subject to the Paperwork Reduction Act,
44 U.S.C. chapter 35.
List of Subjects in 22 CFR Part 17
Administrative practice and
procedure, Annuities, Claims, Debts,
Foreign service, Government employee,
Hearing and appeal procedures,
Pensions, Retirement.
I In consideration of the foregoing, the
State Department amends Title 22 of the
Code of Federal Regulations, by revising
part 17 to read:
PART 17—OVERPAYMENTS FROM
THE FOREIGN SERVICE RETIREMENT
AND DISABILITY FUND UNDER THE
FOREIGN SERVICE RETIREMENT AND
DISABILITY SYSTEM (FSRDS) AND
THE FOREIGN SERVICE PENSION
SYSTEM (FSPS)
Sec.
17.1
17.2
General.
Conditions for waiver of recovery of an
overpayment.
17.3 Fault.
17.4 Equity and good conscience.
17.5 Financial hardship.
17.6 Ordinary and necessary living
expenses.
17.7 Waiver precluded.
17.8 Burdens of proof.
17.9 Procedures.
Authority: 22 U.S.C. 4047(d); 22 U.S.C.
4071(b); 5 U.S.C. 8470(b); 5 CFR 845.301–07.
§ 17.1
General.
This part establishes procedures for
notifying individuals of their rights if
they have received an overpayment
from the Foreign Service Retirement and
Disability Fund under Chapter 8 of the
Foreign Service Act of 1980, as
amended, including their right to
contest the determination that there has
been an overpayment and the right to
request a waiver of recovery of the
overpayment. This part also provides
the procedures for administrative
determination of these rights and for
appeals of negative determinations.
§ 17.2 Conditions for waiver of Recovery
of an Overpayment.
(a) Foreign Service Retirement and
Disability System. Recovery of an
overpayment from the Foreign Service
Retirement and Disability Fund under
the Foreign Service Retirement and
Disability System may be waived
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pursuant to section 4047(d), of title 22,
United States Code when the individual
is without fault and recovery would be
against equity and good conscience or
administratively infeasible.
(b) Foreign Service Pension System.
Recovery of an overpayment from the
Foreign Service Retirement and
Disability Fund under the Foreign
Service Pension System may be waived
pursuant to section 4071(b) of title 22,
United States Code and section 8470(b)
of title 5, United States Code when the
individual is without fault and recovery
would be against equity and good
conscience.
(c) When it has been determined that
the recipient of an overpayment is
ineligible for waiver, the individual is
nevertheless entitled to an adjustment
in the recovery schedule if he or she
shows that it would cause him or her
financial hardship to make payment at
the rate scheduled.
§ 17.3
Fault.
A recipient of an overpayment is
without fault if he or she performed no
act of commission or omission that
resulted in the overpayment. The fact
that the Department of State or other
agency may have been at fault in
initiating an overpayment will not
necessarily relieve the individual from
liability.
(a) Considerations. Pertinent
considerations in finding fault are—
(1) Whether payment resulted from
the individual’s incorrect but not
necessarily fraudulent statement, which
he/she should have known to be
incorrect;
(2) Whether payment resulted from
the individual’s failure to disclose
material facts in his/her possession
which he/she should have known to be
material; or
(3) Whether he/she accepted a
payment which he/she knew or should
have known to be erroneous.
(b) Mitigation factors. The
individual’s age, physical and mental
condition or the nature of the
information supplied to him or her by
the Department of State or a Federal
agency may mitigate against finding
fault if one or more contributed to his
or her submission of an incorrect
statement, a statement which did not
disclose material facts in his or her
possession, or his or her acceptance of
an erroneous overpayment.
hsrobinson on PROD1PC61 with RULES
§ 17.4
Equity and good conscience.
(a) Defined. Recovery is against equity
and good conscience when—
(1) It would cause financial hardship
to the person from whom it is sought;
(2) The recipient of the overpayment
can show (regardless of his or her
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financial circumstances) that due to the
notice that such payment would be
made or because of the incorrect
payment either he/she has relinquished
a valuable right or changed positions for
the worse; or
(3) Recovery could be unconscionable
under the circumstances.
(b) [Reserved]
§ 17.5
Financial hardship.
(a) Waiver of overpayment will not be
allowed in any case prior to receipt and
evaluation of a completed Statement of
Financial Status, duly sworn by the
recipient of the overpayment.
(b) Financial hardship may be deemed
to exist in, but not limited to, those
situations where the recipient from
whom collection is sought needs
substantially all of his or her current
income and liquid assets to meet current
ordinary and necessary living expenses
and liabilities.
(1) Considerations. Some pertinent
considerations in determining whether
recovery would cause financial
hardship are as follows:
(i) The individual’s financial ability to
pay at the time collection is scheduled
to be made.
(ii) Income to other family member(s),
if such member’s ordinary and
necessary living expenses are included
in expenses reported by the individual.
(c) Exemptions. Assets exempt from
execution under State law should not be
considered in determining an
individual’s ability to repay the
indebtedness, rather primary emphasis
shall be placed upon the individual’s
liquid assets and current income in
making such determinations.
§ 17.6 Ordinary and necessary living
expenses.
An individual’s ordinary and
necessary living expenses include rent,
mortgage payments, utilities,
maintenance, food, clothing, insurance
(life, health and accident), taxes,
installment payments, medical
expenses, support expenses when the
individual is legally responsible, and
other miscellaneous expenses which the
individual can establish as being
ordinary and necessary.
§ 17.7
Waiver precluded.
(a) Waiver of an overpayment cannot
be granted when:
(1) The overpayment was obtained by
fraud; or
(2) The overpayment was made to an
estate.
(b) [Reserved]
§ 17.8
Burdens of proof.
(a) Burden of the Department of State.
The Bureau of Resource Management,
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Department of State, must establish by
the preponderance of the evidence that
an overpayment occurred.
(b) Burden of individual. The
recipient of an overpayment must
establish by substantial evidence that he
or she is eligible for waiver or an
adjustment in the recovery schedule.
§ 17.9
Procedures.
(a) Notice. The Bureau of Resource
Management, Department of State, shall
give written notification to any
individual who has received an
overpayment promptly by first-class
mail to the individual at the
individual’s most current address in the
records of the Bureau of Resource
Management. The written notice shall
inform the individual of:
(1) The amount of the overpayment;
(2) The cause of the overpayment;
(3) The intention of the Department to
seek repayment of the overpayment,
(4) The date by which payment
should be made to avoid the imposition
of interest, penalties, and administrative
costs;
(5) The applicable standards for the
imposing of interest, penalties, and
administrative costs;
(6) The department’s willingness to
discuss alternative payment
arrangements and how the individual
may offer to enter into a written
agreement to repay the amount of the
overpayment under terms acceptable to
the Department; and
(7) The name, address and telephone
number of a contact person within the
Bureau of Resource Management. The
written notice also shall inform the
individual of their right to contest the
overpayment, their right to request a
waiver of recovery of the overpayment,
and the procedures to follow in case of
such contest or request for waiver of
recovery. The notification shall allow at
least 30 days from its date within which
the individual may contest in writing
the overpayment or request a waiver of
recovery, including with their
submission all evidence and arguments
in support of their position.
(b) Administrative File. The Bureau of
Resource Management will prepare an
administrative file as a basis for
determination in each case where an
individual contests a claim to recover
overpayment or requests waiver of
recovery of the overpayment. On the
basis of the administrative file, the Chief
Financial Officer or his or her delegate,
shall make the final administrative
determination.
(c) Additional Information. At any
time before the final administrative
decision, the Department may request
the individual to supplement his or her
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submission with additional factual
information and may request that the
individual authorize the Department of
State to have access to bank and other
financial records bearing on the
application of these regulations. If the
individual, without good cause shown,
fails or refuses to produce the requested
additional information or authorization,
the Department of State is entitled to
make adverse inferences with respect to
the matters sought to be amplified,
clarified, or verified.
(d) Decision and right of appeal. The
final administrative decision shall be
reduced to writing and sent to the
individual. If the decision is adverse to
the individual, the notification of the
decision shall include a written
description of the individual’s rights of
appeal to the Foreign Service Grievance
Board. The Foreign Service Grievance
Board shall consider any appeal under
this part in accordance with the
regulations of the Board set forth in 22
CFR part 901.
Dated: February 1, 2006.
Henrietta H. Fore,
Under Secretary for Management,
Department of State.
[FR Doc. 06–3136 Filed 3–30–06; 8:45 am]
BILLING CODE 4710–37–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 203
[Docket No. FR–4916–F–02]
RIN 2502–AI20
Change in Default Reporting Period
Office of the Assistant
Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule.
hsrobinson on PROD1PC61 with RULES
AGENCY:
SUMMARY: This final rule revises the
regulations under the single-family
mortgage insurance program that require
mortgagees to report the status of all
single-family mortgages insured by HUD
that are 90 or more days delinquent. The
rule requires mortgagees to report to
HUD mortgages that are 30 or more days
delinquent on the last day of the month.
The Department believes that the rule
would, among other things, provide
HUD with more recent delinquency
information. The receipt of more up-todate information will enable HUD to
better monitor its loss mitigation
program and strengthen the soundness
of the Federal Housing Administration
(FHA) mortgage insurance funds. This
final rule follows publication of a
January 21, 2005, proposed rule, and
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takes into consideration the seven
public comments received on the
proposed rule. After careful
consideration of the comments, HUD
has decided to adopt the proposed rule
without substantive change.
DATES: Effective Date: May 1, 2006.
FOR FURTHER INFORMATION CONTACT:
Joseph McCloskey, Director, Office of
the Deputy Assistant Secretary for
Single Family Housing, Office of
Housing, Department of Housing and
Urban Development, 451 Seventh Street,
SW., Room 9172, Washington, DC
20410–8000; telephone (202) 708–1672
(this is not a toll-free number). Persons
with hearing or speech impairments
may access this number through TTY by
calling the toll-free Federal Information
Relay Service at (800) 877–8339.
SUPPLEMENTARY INFORMATION:
I. Background—The January 21, 2005,
Proposed Rule
On January 21, 2005 (70 FR 3266),
HUD published a proposed rule to
revise the regulations under part 203
that require mortgagees to report the
status of all single-family mortgages
insured by HUD that are 90 or more
days delinquent. The proposed rule
indicated that the revision to the
regulations would require mortgagees to
report to HUD mortgages that are 30 or
more days delinquent on the last day of
the month.
The January 21, 2005, proposed rule
contained a detailed rationale for the
proposed revision. HUD stated in the
proposed rule that the revisions to the
regulations would bring FHA’s
requirements closer to Fannie Mae,
Freddie Mac, the Mortgage Bankers
Association, and industry standards for
delinquency reporting requirements. As
such, FHA would be in a better position
to integrate itself, should it choose to do
so, into a single platform for industrywide default data reporting.
Additionally, mortgagees should better
understand references to payments due
and unpaid rather than being required
to count days from the due date.
The proposed rule further stated that
HUD also believes the revisions would
contribute to FHA’s efforts in protecting
the financial integrity of the FHA
Mutual Mortgage Insurance Fund. The
effect of the revisions is that the
Department would receive more recent
and timely delinquency and default
information, thereby increasing FHA’s
ability to forecast default volume, future
defaults, and potential insurance losses.
More timely information, the proposed
rule concluded, would also enable FHA
to monitor better its loss mitigation
program. Monitoring of the loss
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16231
mitigation program is important to FHA
because FHA insures 100 percent of a
mortgage loan as compared to private
mortgage insurers, which generally
insure only 10 to 20 percent of a loan.
II. This Final Rule
This final rule follows publication of
the January 21, 2005, proposed rule, and
takes into consideration the seven
public comments received in response.
The public comment period on the rule
closed on February 22, 2005. Comments
were received from a state housing
finance agency, a state housing
authority, a trade association, and
mortgage companies. After careful
consideration of the public comments,
HUD has decided to adopt the January
21, 2005, proposed rule with one minor
change. For clarification purposes, the
clause ‘‘or that were reported as
delinquent the previous month’’ is being
added to each section. This makes it
clear that mortgages previously reported
as delinquent or in default the previous
month must be reported again in the
latest reporting month. Except for that
clarification, the proposed rule and this
final rule are substantively identical.
III. Discussion of Public Comments
Received on the January 21, 2005,
Proposed Rule
Comment: Expanded default
reporting would provide minimal
benefit. The commenter wrote that the
proposal would significantly increase
the number of reportable events each
month. The majority of delinquent loans
never get to 90-day delinquent status,
thus additional data will provide
minimal benefit to HUD in terms of
determining potential insurance losses.
HUD Response. HUD acknowledges
that requiring mortgagees to report 30and 60-day delinquencies will result in
an increase in the total volume of
reportable events. However, most
mortgage servicing computer systems
are capable of providing this additional
data and are in fact currently providing
similar data on 30-day plus
delinquencies to trade associations,
such as the Mortgage Bankers
Association, to various private investors
and insurers, and to the housing-related
Government Sponsored Enterprises
(GSEs), Fannie Mae and Freddie Mac.
HUD has expanded and updated the
capacity of its own system to
accommodate the anticipated increase
in overall data volume as well as status
and default code changes. These
changes were implemented to bring the
data requested by HUD in line with
what Fannie Mae and Freddie Mac
currently require. One of the previous
industry complaints was that HUD’s
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]]>Agencies
[Federal Register Volume 71, Number 62 (Friday, March 31, 2006)]
[Rules and Regulations]
[Pages 16228-16231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3136]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 17
[Public Notice 5311]
Overpayments From the Foreign Service Retirement and Disability
Fund
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State is revising its regulations regarding
overpayments from the Foreign Service Retirement and Disability Fund
under the Foreign Service Retirement and Disability System (FSRDS) to
reflect internal Department restructuring and realignment of
responsibilities and the
[[Page 16229]]
creation of the Foreign Service Pension System (FSPS).
DATES: This rule is effective May 1, 2006.
ADDRESSES: You may submit comments by any of the following methods:
E-mail: SkipperK@state.gov
Mail paper submissions to the Deputy Assistant Secretary
for Global Financial Services, Charleston Financial Service Center,
P.O. Box 150008, Charleston, S.C. 29415-5008.
Persons with access to the internet may also view this notice by
going to the regulations.gov Web site at: https://www.regulations.gov/
index.cfm.
FOR FURTHER INFORMATION CONTACT: Kathryn Nutt Skipper, Office of the
Legal Adviser, telephone 202-647-4278.
SUPPLEMENTARY INFORMATION: This rule revises the Department of State's
regulations regarding overpayments from the Foreign Service Retirement
and Disability Fund under the Foreign Service Retirement and Disability
System (FSRDS) to reflect internal Department restructuring and
realignment of responsibilities and the creation of the Foreign Service
Pension System (FSPS).
This regulation establishes procedures for notifying individuals of
their rights if they have received an overpayment from the Foreign
Service Retirement and Disability Fund under Chapter 8 of the Foreign
Service Act of 1980, as amended, including their right to contest the
determination that there has been an overpayment and the right to
request a waiver of recovery of the overpayment. This part also
provides the procedures for administrative determination of these
rights and for appeals of negative determinations.
Regulatory Analysis
Administrative Procedures Act
No notice of proposed rulemaking is required under the
Administrative Procedure Act (APA) because these rules relate solely to
agency procedure and practice (5 U.S.C. 553(b)(3)(A)).
Regulatory Flexibility Act
The Department, in accordance with the Regulatory Flexibility Act
(5 U.S.C. 605(b)), has reviewed this regulation and, by approving it,
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities.
Unfunded Mandated Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 804). This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets.
Executive Order 12866
The Department does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. In addition, the Department is exempt
from Executive Order 12866 except to the extent that it is promulgating
regulations in conjunction with a domestic agency that are significant
regulatory actions. The Department has nevertheless reviewed the
regulation to ensure its consistency with the regulatory philosophy and
principles set forth in the Executive Order.
Executive Order 12988
The Department has reviewed this regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to
eliminate ambiguity, minimize litigation, establish clear legal
standards, and reduce burden.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, the Department determines that
this rule does not have sufficient federalism implications to require
consultations or warrant the preparation of a federalism summary impact
statement.
Executive Order 12372
This regulation does not require review under Executive Order
12372, Intergovernmental Review of Federal Programs.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter
35.
List of Subjects in 22 CFR Part 17
Administrative practice and procedure, Annuities, Claims, Debts,
Foreign service, Government employee, Hearing and appeal procedures,
Pensions, Retirement.
0
In consideration of the foregoing, the State Department amends Title 22
of the Code of Federal Regulations, by revising part 17 to read:
PART 17--OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND
DISABILITY FUND UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY
SYSTEM (FSRDS) AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS)
Sec.
17.1 General.
17.2 Conditions for waiver of recovery of an overpayment.
17.3 Fault.
17.4 Equity and good conscience.
17.5 Financial hardship.
17.6 Ordinary and necessary living expenses.
17.7 Waiver precluded.
17.8 Burdens of proof.
17.9 Procedures.
Authority: 22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C.
8470(b); 5 CFR 845.301-07.
Sec. 17.1 General.
This part establishes procedures for notifying individuals of their
rights if they have received an overpayment from the Foreign Service
Retirement and Disability Fund under Chapter 8 of the Foreign Service
Act of 1980, as amended, including their right to contest the
determination that there has been an overpayment and the right to
request a waiver of recovery of the overpayment. This part also
provides the procedures for administrative determination of these
rights and for appeals of negative determinations.
Sec. 17.2 Conditions for waiver of Recovery of an Overpayment.
(a) Foreign Service Retirement and Disability System. Recovery of
an overpayment from the Foreign Service Retirement and Disability Fund
under the Foreign Service Retirement and Disability System may be
waived
[[Page 16230]]
pursuant to section 4047(d), of title 22, United States Code when the
individual is without fault and recovery would be against equity and
good conscience or administratively infeasible.
(b) Foreign Service Pension System. Recovery of an overpayment from
the Foreign Service Retirement and Disability Fund under the Foreign
Service Pension System may be waived pursuant to section 4071(b) of
title 22, United States Code and section 8470(b) of title 5, United
States Code when the individual is without fault and recovery would be
against equity and good conscience.
(c) When it has been determined that the recipient of an
overpayment is ineligible for waiver, the individual is nevertheless
entitled to an adjustment in the recovery schedule if he or she shows
that it would cause him or her financial hardship to make payment at
the rate scheduled.
Sec. 17.3 Fault.
A recipient of an overpayment is without fault if he or she
performed no act of commission or omission that resulted in the
overpayment. The fact that the Department of State or other agency may
have been at fault in initiating an overpayment will not necessarily
relieve the individual from liability.
(a) Considerations. Pertinent considerations in finding fault are--
(1) Whether payment resulted from the individual's incorrect but
not necessarily fraudulent statement, which he/she should have known to
be incorrect;
(2) Whether payment resulted from the individual's failure to
disclose material facts in his/her possession which he/she should have
known to be material; or
(3) Whether he/she accepted a payment which he/she knew or should
have known to be erroneous.
(b) Mitigation factors. The individual's age, physical and mental
condition or the nature of the information supplied to him or her by
the Department of State or a Federal agency may mitigate against
finding fault if one or more contributed to his or her submission of an
incorrect statement, a statement which did not disclose material facts
in his or her possession, or his or her acceptance of an erroneous
overpayment.
Sec. 17.4 Equity and good conscience.
(a) Defined. Recovery is against equity and good conscience when--
(1) It would cause financial hardship to the person from whom it is
sought;
(2) The recipient of the overpayment can show (regardless of his or
her financial circumstances) that due to the notice that such payment
would be made or because of the incorrect payment either he/she has
relinquished a valuable right or changed positions for the worse; or
(3) Recovery could be unconscionable under the circumstances.
(b) [Reserved]
Sec. 17.5 Financial hardship.
(a) Waiver of overpayment will not be allowed in any case prior to
receipt and evaluation of a completed Statement of Financial Status,
duly sworn by the recipient of the overpayment.
(b) Financial hardship may be deemed to exist in, but not limited
to, those situations where the recipient from whom collection is sought
needs substantially all of his or her current income and liquid assets
to meet current ordinary and necessary living expenses and liabilities.
(1) Considerations. Some pertinent considerations in determining
whether recovery would cause financial hardship are as follows:
(i) The individual's financial ability to pay at the time
collection is scheduled to be made.
(ii) Income to other family member(s), if such member's ordinary
and necessary living expenses are included in expenses reported by the
individual.
(c) Exemptions. Assets exempt from execution under State law should
not be considered in determining an individual's ability to repay the
indebtedness, rather primary emphasis shall be placed upon the
individual's liquid assets and current income in making such
determinations.
Sec. 17.6 Ordinary and necessary living expenses.
An individual's ordinary and necessary living expenses include
rent, mortgage payments, utilities, maintenance, food, clothing,
insurance (life, health and accident), taxes, installment payments,
medical expenses, support expenses when the individual is legally
responsible, and other miscellaneous expenses which the individual can
establish as being ordinary and necessary.
Sec. 17.7 Waiver precluded.
(a) Waiver of an overpayment cannot be granted when:
(1) The overpayment was obtained by fraud; or
(2) The overpayment was made to an estate.
(b) [Reserved]
Sec. 17.8 Burdens of proof.
(a) Burden of the Department of State. The Bureau of Resource
Management, Department of State, must establish by the preponderance of
the evidence that an overpayment occurred.
(b) Burden of individual. The recipient of an overpayment must
establish by substantial evidence that he or she is eligible for waiver
or an adjustment in the recovery schedule.
Sec. 17.9 Procedures.
(a) Notice. The Bureau of Resource Management, Department of State,
shall give written notification to any individual who has received an
overpayment promptly by first-class mail to the individual at the
individual's most current address in the records of the Bureau of
Resource Management. The written notice shall inform the individual of:
(1) The amount of the overpayment;
(2) The cause of the overpayment;
(3) The intention of the Department to seek repayment of the
overpayment,
(4) The date by which payment should be made to avoid the
imposition of interest, penalties, and administrative costs;
(5) The applicable standards for the imposing of interest,
penalties, and administrative costs;
(6) The department's willingness to discuss alternative payment
arrangements and how the individual may offer to enter into a written
agreement to repay the amount of the overpayment under terms acceptable
to the Department; and
(7) The name, address and telephone number of a contact person
within the Bureau of Resource Management. The written notice also shall
inform the individual of their right to contest the overpayment, their
right to request a waiver of recovery of the overpayment, and the
procedures to follow in case of such contest or request for waiver of
recovery. The notification shall allow at least 30 days from its date
within which the individual may contest in writing the overpayment or
request a waiver of recovery, including with their submission all
evidence and arguments in support of their position.
(b) Administrative File. The Bureau of Resource Management will
prepare an administrative file as a basis for determination in each
case where an individual contests a claim to recover overpayment or
requests waiver of recovery of the overpayment. On the basis of the
administrative file, the Chief Financial Officer or his or her
delegate, shall make the final administrative determination.
(c) Additional Information. At any time before the final
administrative decision, the Department may request the individual to
supplement his or her
[[Page 16231]]
submission with additional factual information and may request that the
individual authorize the Department of State to have access to bank and
other financial records bearing on the application of these
regulations. If the individual, without good cause shown, fails or
refuses to produce the requested additional information or
authorization, the Department of State is entitled to make adverse
inferences with respect to the matters sought to be amplified,
clarified, or verified.
(d) Decision and right of appeal. The final administrative decision
shall be reduced to writing and sent to the individual. If the decision
is adverse to the individual, the notification of the decision shall
include a written description of the individual's rights of appeal to
the Foreign Service Grievance Board. The Foreign Service Grievance
Board shall consider any appeal under this part in accordance with the
regulations of the Board set forth in 22 CFR part 901.
Dated: February 1, 2006.
Henrietta H. Fore,
Under Secretary for Management, Department of State.
[FR Doc. 06-3136 Filed 3-30-06; 8:45 am]
BILLING CODE 4710-37-P
