Procedures for Corporate Debt Collection, 75659-75662 [E6-21470]
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Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Rules and Regulations
accordance with the following
provisions:
(A) McPhail traps with an approved
protein bait must be used within
registered greenhouses. Traps must be
placed inside greenhouses at a density
of 4 traps/10 ha, with a minimum of at
least two traps per greenhouse. Traps
inside greenhouses will use the same
bait for Medfly and Rhagoletis tomatis
because the bait used for R. tomatis is
sufficient for attracting both types of
fruit fly within the confines of a
greenhouse; therefore, it is unnecessary
to repeat this trapping protocol in
production sites in areas where Medfly
is known to occur.
(B) McPhail traps with an approved
protein bait must be placed inside a 500
meter buffer zone at a density of 1 trap/
10 ha surrounding the production site.
At least one of the traps must be near
a greenhouse. Traps must be set for at
least 2 months before export until the
end of the harvest season and must be
checked at least every 7 days. In areas
where Medfly trapping is required, traps
located outside of greenhouses must
contain different baits for Medfly and
Rhagoletis tomatis. There is only one
approved bait for R. tomatis and the bait
is not strong enough to lure Medfly
when used outside greenhouses;
therefore, separate traps must be used
for each type of fruit fly present in the
area surrounding the greenhouses.
(C) If within 30 days of harvest a
single Rhagoletis tomatis is captured
inside the greenhouse or in a
consignment or if two R. tomatis are
captured or detected in the buffer zone,
shipments from the production site will
be suspended until APHIS and SAG
determine that risk mitigation is
achieved.
(v) Registered production sites must
conduct regular inspections for Tuta
absoluta throughout the harvest season
and find these areas free of T. absoluta
evidence (e.g., eggs or larvae). If within
30 days of harvest, two Tuta absoluta
are captured inside the greenhouse or a
single T. absoluta is found inside the
fruit or in a consignment, shipments
from the production site would be
suspended until APHIS and SAG
determine that risk mitigation is
achieved.
(vi) SAG will ensure that populations
of Liriomyza huidobrensis inside
greenhouses are well managed by doing
inspections during the monthly visits
specifically for L. huidobrensis mines in
the leaves and for visible external pupae
or adults. If L. huidobrensis is found to
be generally infesting the production
site, shipments from the production site
would be suspended until APHIS and
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SAG agree that risk mitigation is
achieved.
(vii) All traps must be placed at least
2 months prior to harvest and be
maintained throughout the harvest
season and be monitored and serviced
weekly.
(viii) SAG must maintain records of
trap placement, checking of traps, and
of any Rhagoletis tomatis or Tuta
absoluta captures for 1 year for APHIS
review. SAG must maintain an APHIS
approved quality control program to
monitor or audit the trapping program.
APHIS must be notified when a
production site is removed from or
added to the program.
(ix) The tomatoes must be packed
within 24 hours of harvest in a pestexclusionary packinghouse. The
tomatoes must be safeguarded by a pestproof screen or plastic tarpaulin while
in transit to the packinghouse and while
awaiting packing. Tomatoes must be
packed in insect-proof cartons or
containers or covered with insect-proof
mesh or plastic tarpaulin for transit to
the United States. These safeguards
must remain intact until arrival in the
United States.
(x) During the time the packinghouse
is in use for exporting fruit to the United
States, the packinghouse may only
accept fruit from registered approved
production sites.
(xi) SAG is responsible for export
certification inspection and issuance of
phytosanitary certificates. Each
shipment of tomatoes must be
accompanied by a phytosanitary
certificate issued by SAG with an
additional declaration, ‘‘These tomatoes
were grown in an approved production
site in Chile.’’ The shipping box must be
labeled with the identity of the
production site.
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(a) Mangoes grown on the island of
Guimaras, which the Administrator has
determined meet the criteria set forth in
§ 319.56–2(e)(4) and § 319.56–2(f) with
regard to the mango seed weevil
(Sternochetus mangiferae), are eligible
for importation into all areas of the
United States. Mangoes from all other
areas of the Philippines except Palawan
are eligible for importation into Hawaii
and Guam only. Mangoes from Palawan
are not eligible for importation into the
United States.
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(d) * * * Shipments originating from
approved areas other than Guimaras
must be labeled ‘‘For distribution in
Guam and Hawaii only.’’
(e) Phytosanitary certificate. Mangoes
originating from all approved areas must
be accompanied by a phytosanitary
certificate issued by the Republic of the
Philippines Department of Agriculture
that contains an additional declaration
stating that the mangoes have been
treated for fruit flies of the genus
Bactrocera in accordance with
paragraph (b) of this section.
Phytosanitary certificates accompanying
shipments of mangoes originating from
the island of Guimaras must also
contain an additional declaration stating
that the mangoes were grown on the
island of Guimaras.
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(Approved by the Office of Management
and Budget under control numbers
0579–0172 and 0579–0280)
(Approved by the Office of Management
and Budget under control numbers
0579–0049, 0579–0131, 0579–0280, and
0579–0286)
FEDERAL DEPOSIT INSURANCE
CORPORATION
7. Section 319.56–2ii is amended as
follows:
I a. By revising paragraph (a) to read as
set forth below.
I b. In paragraph (d), by adding a new
sentence at the end of the paragraph to
read as set forth below.
I c. By revising paragraph (e) to read as
set forth below.
I d. By adding an OMB citation at the
end of the section to read as set forth
below.
RIN 3064–AD12
I
§ 319.56–2ii Administrative instructions:
conditions governing the entry of mangoes
from the Philippines.
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Done in Washington, DC, this 12th day of
December 2006.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E6–21496 Filed 12–15–06; 8:45 am]
BILLING CODE 3410–34–P
12 CFR Part 313
Procedures for Corporate Debt
Collection
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
AGENCY:
SUMMARY: The Federal Deposit
Insurance Corporation (FDIC) is
amending 12 CFR part 313, Procedures
for Corporate Debt Collection, to include
delinquent criminal restitution debt
within the debt covered by part 313.
DATES: Effective Date: This rule is
effective on December 18, 2006.
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Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Rules and Regulations
Rex
Taylor, (703) 562–2453, or Catherine A.
Ribnick, (202) 898–3728, of the Legal
Division, or Richard Romero, (202) 898–
8652, of the Division of Resolutions and
Receiverships.
SUPPLEMENTARY INFORMATION:
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FOR FURTHER INFORMATION CONTACT:
1. Background
The Debt Collection Improvement Act
of 1996 (DCIA) requires federal agencies
to collect debts owed to the United
States in accordance with regulations
that either adopt, or at least are
consistent with, standards prescribed by
the Department of Justice (DOJ) and
Department of the Treasury (Treasury).
31 U.S.C. 3711. These standards, known
as the Federal Claims Collection
Standards (FCCS), became effective on
December 22, 2000. (see 31 CFR 900–
904). The purpose of the DCIA is to
enhance the efficiency and effectiveness
of the federal government’s efforts to
collect debt owed to the United States.
A principal feature of the DCIA was the
creation of the Treasury Offset Program
(TOP), a government-wide database of
delinquent debtors that offsets (reduces)
federal payments to recipients who also
owe delinquent debt to the United
States and that remits the offset amount
to the creditor agency. The FDIC is the
creditor agency for delinquent
restitution debts owed to the FDIC. The
recommended amendments do not
affect the FDIC’s existing authority
under part 313 to collect certain debts
owed to the FDIC in its corporate
capacity.
In 2002, the FDIC in compliance with
the DCIA promulgated 12 CFR part 313
governing the collection of certain debt
owed to the FDIC in its corporate
capacity by federal employees,
including FDIC employees, and certain
third parties. Part 313 in its present
form ‘‘applies only to [certain] debts
owed to and payments made by the
FDIC acting in its corporate capacity;
that is, in connection with employee
matters such as travel-related claims
and erroneous overpayments,
contracting activities involving
corporate operations, debts related to
requests to the FDIC for documents
under the Freedom of Information Act
(FOIA) or where a request for an offset
is received by the FDIC from another
federal agency.’’ (See 12 CFR 313.1(c)).
Part 313 also explicitly states that it
‘‘does not apply to debts owed to or
payments made by the FDIC in
connection with the FDIC’s liquidation,
supervision, enforcement, or insurance
responsibilities.’’ (Id.)
Under part 313, when the Director of
the Division of Administration (DOA) or
the Director of the Division of Finance
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(DOF) determines that it is appropriate
to initiate procedures to collect
corporate debt of the type authorized by
part 313, the Director must conform to
the procedural standards for collecting
such debts set forth in part 313. These
standards generally prescribe the
following steps in the debt collection
process: Prompt demand for payment of
the debt; upon the debtor’s demand for
a final agency determination,
verification of the existence and amount
of the debt; standards for collecting
debts in installment payments; the
assessment of interest, penalties, and
administrative costs on delinquent
debts; standards for the compromise of
overdue debt; standards to be followed
in determining whether to suspend or
terminate collection action; the required
referral of delinquent debts to FMS for
collection; the reporting of debts to
consumer reporting agencies and the
use of credit reports; and the sale of
delinquent debts. The Director also
must follow the procedures for the
specific type of offset remedy to be
utilized, which are provided by the
following subparts of part 313: Subpart
B (administrative offset), subpart C
(salary offset), subpart D (administrative
wage garnishment), subpart E (tax
refund offset), subpart F (Civil Service
retirement and disability fund offset),
and subpart G (mandatory centralized
administrative offset).
The criminal restitution orders that
the FDIC holds in almost all instances
are initially acquired by the FDIC in its
receivership capacity. Over time, the
FDIC as receiver has transferred a
substantial number of individual
restitution orders to the FDIC in its
corporate capacity, with the result that
today criminal restitution debt is held
by the FDIC in both its receivership and
corporate capacities. Because part 313
as currently drafted excludes all of the
FDIC’s receivership and liquidation
functions (among other functions) from
its scope, it must be amended for the
FDIC to have the authority to collect
criminal restitution debt through TOP.
The legal authority for the proposed
amendments is found in the DCIA itself.
The DCIA’s definition of ‘‘debt’’
includes criminal restitution debt owed
to federal agencies including the FDIC.
Thus, section 3701(b)(1)(D) of the DCIA
defines ‘‘claim’’ or ‘‘debt’’ to include:
(D) Any amount the United States is
authorized by statute to collect for the
benefit of any person.
Criminal restitution debt owed to the
FDIC falls squarely within this
definition, regardless of whether that
debt is owed to the FDIC in its
receivership capacity or its corporate
capacity.
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The United States Department of
Justice is primarily responsible for
collecting unpaid federal criminal
restitution debt. The Mandatory Victims
Restitution Act (MVRA) of 1996, 18
U.S.C. 3556 & 3663 seq., which makes
imposition of restitution a mandatory
component of sentencing for many
federal crimes, including banking
crimes, expressly provides in section
3664(m) that the United States has the
authority to enforce all federal criminal
restitution orders in all cases. Moreover,
the Federal Debt Collection Procedures
Act (FDCPA), 28 U.S.C. 3001 et seq.,
originally enacted in 1990, is the
primary statutory authority that DOJ
uses to collect criminal restitution
orders on behalf of the victims
identified in those orders, which
include the FDIC in the case of
restitution orders held by the FDIC. The
FDCPA also explicitly defines ‘‘debt’’ to
include ‘‘an amount that is owing to the
United States on account of * * *
restitution.’’ 28 U.S.C. 3002(3)(B).
United States Attorney’s Offices
throughout the United States use the
MVRA and FDCPA to collect and
enforce criminal restitution debt on
behalf of the FDIC and other victims
including other federal agencies. If DOJ
does not enforce an individual order,
the victim named in the order may seek
to enforce it instead.
II. Discussion of the Amendments to
Part 313
The amendments would modify part
313 in three ways:
1. A number of individual sections of
part 313 are amended to provide that
part 313 applies to criminal restitution
debt owed to the FDIC in either its
corporate or receivership capacity in
addition to the already-covered
corporate debts currently identified in
§ 313.1.
2. Section 313.4 is amended to
provide that the FDIC Board delegates to
the Director of the Division of
Resolutions and Receiverships (DRR)
authority to refer delinquent criminal
restitution debt to FMS.
3. A new section 313.125 is added to
subpart E, the Tax Refund Offset
regulations, to clarify that duplicate
notice to a debtor is not required if
notice and an opportunity for review
were previously provided to the same
debtor. This provision is identical to the
existing § 313.28 found in the
Administrative Offset regulations in
subpart B. While § 313.28 arguably
already applies to subpart E (because tax
refund offset is generally considered to
be a form of ‘‘administrative’’ offset), the
new § 313.125 is added to eliminate any
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Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Rules and Regulations
uncertainty in the FDIC’s regulations on
this point.
III. Administrative Procedure Act
PART 313—PROCEDURES FOR
COLLECTION OF CORPORATE DEBT
AND CRIMINAL RESTITUTION DEBT
1. The authority citation for part 313
is revised to read as follows:
Neither advance notice of proposed
rulemaking nor an opportunity to
comment on the amendments to part
313 is required under the
Administrative Procedure Act (APA),
because these amendments relate solely
to agency procedure and practice. 5
U.S.C. 553(b)(3)(A).
I
IV. Regulatory Flexibility Act
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Pursuant to the Regulatory Flexibility
Act, the FDIC hereby certifies that the
amendments to part 313 do not have a
significant economic impact on a
substantial number of small business
entities. As amended, part 313 applies
primarily to federal agencies and to a
limited number of individuals and/or
business entities. 5 U.S.C. 605(b).
V. Paperwork Reduction Act
This rule is not subject to the
Paperwork Reduction Act, 44 U.S.C.
3501, because it does not contain any
new information collection
requirements.
VI. Assessment of Impact of Federal
Regulation on Families
The FDIC has determined that part
313 as amended will not affect family
well-being within the meaning of
section 654 of the Treasury and General
Government Appropriations Act,
enacted as part of the Omnibus
Consolidated and Emergency
Supplemental Appropriations Act, 1999
(Pub. L. 105–277, 112 Stat. 2681).
VII. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104–121) provides
generally for agencies to report rules to
Congress for review. The reporting
requirement is triggered when the FDIC
issues a final rule as defined by the APA
at 5 U.S.C. 551. Because the FDIC is
issuing a final rule as defined by the
APA, the FDIC will file the reports
required by SBREFA. The Office of
Management and Budget has
determined that this final rule does not
constitute a ‘‘major rule’’ as defined by
SBREFA.
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List of Subjects in 12 CFR Part 313
Claims, Government employees,
Wages.
For the reasons set forth in the
preamble, the FDIC hereby amends part
313 of chapter III of title 12 of the Code
of Federal Regulations as follows:
I
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Authority: 12 U.S.C. 1819(a); 5 U.S.C.
5514; Pub. L. 104–143; 110 Stat. 1321 (31
U.S.C. 3701, 3711, 3716).
I
2. Revise § 313.1(c) to read as follows:
§ 313.1
Scope.
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(c) This part applies only to:
(1) Debts owed to and payments made
by the FDIC acting in its corporate
capacity, that is, in connection with
employee matters such as travel-related
claims and erroneous overpayments,
contracting activities involving
corporate operations, debts related to
requests to the FDIC for documents
under the Freedom of Information Act
(FOIA), or where a request for an offset
is received by the FDIC from another
federal agency; and
(2) Criminal restitution debt owed to
the FDIC in either its corporate capacity
or its receivership capacity.
(3) With the exception of criminal
restitution debt noted in paragraph
(c)(2) of this section, this part does not
apply to debts owed to or payments
made by the FDIC in connection with
the FDIC’s liquidation, supervision,
enforcement, or insurance
responsibilities, nor does it limit or
affect the FDIC’s authority with respect
to debts and/or claims pursuant to 12
U.S.C. 1819(a) and 1820(a).
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I 3. In § 313.3 revise paragraphs (d), (h),
and (j); redesignate paragraphs (n)
through (v) as paragraphs (o) through
(w), respectively; add a new paragraph
(n); and revise the newly designated
paragraph (r) to read as follows:
§ 313.3
Definitions.
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(d) Certification means a written
statement transmitted from a creditor
agency to a paying agency for purposes
of administrative or salary offset, to
FMS for offset or to the Secretary of the
Treasury for centralized administrative
offset. The certification confirms the
existence and amount of the debt and
verifies that required procedural
protections have been afforded the
debtor. Where the debtor requests a
hearing on a claimed debt, the decision
by a hearing official or administrative
law judge constitutes a certification.
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(h) Debt means an amount owed to
the United States from loans insured or
guaranteed by the United States and all
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75661
other amounts due the United States
from fees, leases, rents, royalties,
services, sales of real or personal
property, overpayments, penalties,
damages, interest, restitution, fines and
forfeitures, and all other similar sources.
For purposes of this part, a debt owed
to the FDIC constitutes a debt owed to
the United States.
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(j) Director means the Director of the
Division of Finance (DOF), the Director
of the Division of Administration
(DOA), or the Director of the Division of
Resolutions and Receiverships (DRR), as
applicable, or the applicable Director’s
delegate.
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(n) Division of Resolutions and
Receiverships (DRR) means the Division
of Resolutions and Receiverships of the
FDIC.
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(r) Notice of Intent to Offset or Notice
of Intent means a written notice from a
creditor agency to an employee,
organization, entity, or restitution
debtor that claims a debt and informs
the debtor that the creditor agency
intends to collect the debt by
administrative offset. The notice also
informs the debtor of certain procedural
rights with respect to the claimed debt
and offset.
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I 4. Revise the introductory paragraph
in § 313.4 to read as follows:
§ 313.4
Delegations of authority.
Authority to conduct the following
activities to collect debt, other than
criminal restitution debt, on behalf of
the FDIC in its corporate capacity is
delegated to the Director of DOA or
Director of DOF, as applicable; and
authority to collect criminal restitution
debt on behalf of the FDIC in either its
receivership or corporate capacity is
delegated to the Director of DRR; or to
the applicable Director’s delegate; to:
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I 5. Redesignate § 313.125 through
313.127 as § 313.126 through 313.128
and add a new § 313.125 to read as
follows:
§ 313.125
notice.
No requirement for duplicate
Where the director has previously
given a debtor any of the required notice
and review opportunities with respect
to a particular debt, the Director is not
required to duplicate such notice and
review opportunities prior to initiating
tax refund offset.
By order of the Board of Directors.
Dated at Washington, DC, this 5th day of
December, 2006.
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Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Rules and Regulations
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. E6–21470 Filed 12–15–06; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 292
[Docket No. RM06–10–000]
New PURPA Section 210(m)
Regulations Applicable to Small Power
Production and Cogeneration
Facilities; Correction
Federal Energy Regulatory
Commission, DOE.
ACTION: Final rule; correction.
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AGENCY:
16:25 Dec 15, 2006
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Magalie R. Salas,
Secretary.
[FR Doc. E6–21433 Filed 12–15–06; 8:45 am]
BILLING CODE 6717–01–P
SUMMARY: This document corrects errors
in a final rule that the Federal Energy
Regulatory Commission (Commission)
published in the Federal Register on
November 1, 2006. That action amended
the Commission’s regulations governing
small power production and
cogeneration in response to section 1253
of the Energy Policy Act of 2005.
DATES: These corrections are effective
January 2, 2007.
FOR FURTHER INFORMATION CONTACT:
Samuel Higginbottom (Legal
Information), Office of the General
Counsel, Federal Energy Regulatory
Commission, at (202) 502–8561.
SUPPLEMENTARY INFORMATION: In FR
Document 06–8928, published
November 1, 2006 (71 FR 64342), make
the following corrections:
I On page 64372, column 2, in
§ 292.303(c)(1), in the last sentence,
after ‘‘interconnection’’ add ‘‘costs’’.
The sentence is corrected to read: ‘‘The
obligation to pay for any
interconnection costs shall be
determined in accordance with
§ 292.306.
I On page 64372, column 2, in
‘‘§ 292.303(d), in the first sentence, after
‘‘purchase energy’’, remove ‘‘and’’ and
add in its place ‘‘or’’. Sentence is
corrected to read : ‘‘If a qualifying
facility agrees, an electric utility which
would otherwise be obligated to
purchase energy or capacity from such
qualifying facility may transmit energy
or capacity to any other electric utility’’.
I On page 64373, column 1, in
§ 292.309(f)(2), in the last sentence after
‘‘facility ouput or’’ add the word
‘‘capacity’’. Sentence is corrected to
read: ‘‘The qualifying facility may show
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that it is located in an area where
persistent transmission constraints in
effect cause the qualifying facility not to
have access to markets outside a
persistently congested area to sell the
qualifying facility output or capacity’’.
I On page 64374, second column, in
§ 292.312(b), after, ‘‘an existing
qualifying cogeneration’’ remove
‘‘qualifying’’. The sentence is corrected
to read: ‘‘After August 8, 2005, an
electric utility shall not be required to
enter into a new contract or obligation
to sell electric energy to a qualifying
small power production facility, an
existing qualifying cogeneration facility,
or a new qualifying cogeneration facility
if the Commission has found that;’’
DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice: 5646]
Visas: Documentation of
Nonimmigrants Under the Immigration
and Nationality Act, as Amended
State Department.
Final rule.
AGENCY:
ACTION:
SUMMARY: This final rule amends
guidance to consular offices for the
waiver of personal appearance of
applicants for nonimmigrant visas
contained at 22 CFR 41.102, to conform
to the requirements of Section 222(h) of
the Immigration and Nationality Act, as
added by section 5301 of the
Intelligence Reform and Terrorism
Prevention Act of 2004 (IRTPA). The
final rule replaces the interim rule
published in the Federal Register on
July 7, 2003 and reflects legislation
enacted subsequent to that rule.
DATES: This rule is effective on
December 18, 2006.
FOR FURTHER INFORMATION CONTACT:
Charles Robertson, Legislation and
Regulations Division, Visa Services,
Department of State, Washington, DC
20520–0106, (202) 663–1221, e-mail
(robertsonce3@state.gov).
Why is the Department promulgating
this rule?
Section 5301 of the Intelligence
Reform and Terrorism Prevention Act of
2004 (IRTPA) added a new Section
222(h) to the Immigration and
Nationality Act (INA). Section 222(h)
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Are there any exceptions to these new
requirements?
Section 5301 of IRTPA provides for
some exceptions from the new interview
requirements. In addition, as the
President noted in the signing statement
for IRTPA, the interview requirement is
viewed ‘‘as advisory’’ with respect to
foreign diplomats or foreign officials,
because it otherwise would
impermissibly burden the President’s
constitutional authority to conduct
foreign relations. Therefore, the
regulations continue to permit
exemptions from the interview
requirements of persons in A–1, A–2, C–
2, C–3, G–1, G–2, G–3 G–4, NATO–1,
NATO–2, NATO–3, NATO–4, NATO–5,
or NATO 6 classifications, and
applicants for diplomatic or officials
visas as described in 22 CFR 41.26 and
41.27.
Regulatory Findings
SUPPLEMENTARY INFORMATION:
PO 00000
sets out detailed statutory requirements
for personal interviews of nonimmigrant visa applicants in the INA for
the first time. Previously, INA Section
222(e) left the question of personal
appearance of nonimmigrant visa
applicants to be defined by regulation.
The Department’s interim rule
published on July 7, 2003 (68 FR 40168)
defined the requirements for personal
appearance. This final rule replaces the
previous interim rule to reflect the
requirements of IRTPA and the new INA
Section 222(h). Most of new Section
222(h) can be implemented through the
Department’s existing personal
appearance regulations and current
requirements for fingerprint collection,
but a few changes in the regulations are
needed to conform fully to the new
interview requirements. The most
significant change is that a consular
officer must now interview persons in
the same age ranges as persons covered
by the biometric collection requirement.
In addition to the existing list of
situations in which an interview may
not be waived, the personal interview
requirement may not be waived for NIV
applicants from third countries and
applicants who have been previously
refused visas or found ineligible for
visas, where that ineligibility was not
overcome.
Administrative Procedure Act
This regulation involves a foreign
affairs function of the United States and,
therefore, in accordance with 5 U.S.C.
553 (a)(1), is not subject to the rule
making procedures set forth at 5 U.S.C.
553.
E:\FR\FM\18DER1.SGM
18DER1
]]>Agencies
[Federal Register Volume 71, Number 242 (Monday, December 18, 2006)]
[Rules and Regulations]
[Pages 75659-75662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21470]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 313
RIN 3064-AD12
Procedures for Corporate Debt Collection
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is amending
12 CFR part 313, Procedures for Corporate Debt Collection, to include
delinquent criminal restitution debt within the debt covered by part
313.
DATES: Effective Date: This rule is effective on December 18, 2006.
[[Page 75660]]
FOR FURTHER INFORMATION CONTACT: Rex Taylor, (703) 562-2453, or
Catherine A. Ribnick, (202) 898-3728, of the Legal Division, or Richard
Romero, (202) 898-8652, of the Division of Resolutions and
Receiverships.
SUPPLEMENTARY INFORMATION:
1. Background
The Debt Collection Improvement Act of 1996 (DCIA) requires federal
agencies to collect debts owed to the United States in accordance with
regulations that either adopt, or at least are consistent with,
standards prescribed by the Department of Justice (DOJ) and Department
of the Treasury (Treasury). 31 U.S.C. 3711. These standards, known as
the Federal Claims Collection Standards (FCCS), became effective on
December 22, 2000. (see 31 CFR 900-904). The purpose of the DCIA is to
enhance the efficiency and effectiveness of the federal government's
efforts to collect debt owed to the United States. A principal feature
of the DCIA was the creation of the Treasury Offset Program (TOP), a
government-wide database of delinquent debtors that offsets (reduces)
federal payments to recipients who also owe delinquent debt to the
United States and that remits the offset amount to the creditor agency.
The FDIC is the creditor agency for delinquent restitution debts owed
to the FDIC. The recommended amendments do not affect the FDIC's
existing authority under part 313 to collect certain debts owed to the
FDIC in its corporate capacity.
In 2002, the FDIC in compliance with the DCIA promulgated 12 CFR
part 313 governing the collection of certain debt owed to the FDIC in
its corporate capacity by federal employees, including FDIC employees,
and certain third parties. Part 313 in its present form ``applies only
to [certain] debts owed to and payments made by the FDIC acting in its
corporate capacity; that is, in connection with employee matters such
as travel-related claims and erroneous overpayments, contracting
activities involving corporate operations, debts related to requests to
the FDIC for documents under the Freedom of Information Act (FOIA) or
where a request for an offset is received by the FDIC from another
federal agency.'' (See 12 CFR 313.1(c)). Part 313 also explicitly
states that it ``does not apply to debts owed to or payments made by
the FDIC in connection with the FDIC's liquidation, supervision,
enforcement, or insurance responsibilities.'' (Id.)
Under part 313, when the Director of the Division of Administration
(DOA) or the Director of the Division of Finance (DOF) determines that
it is appropriate to initiate procedures to collect corporate debt of
the type authorized by part 313, the Director must conform to the
procedural standards for collecting such debts set forth in part 313.
These standards generally prescribe the following steps in the debt
collection process: Prompt demand for payment of the debt; upon the
debtor's demand for a final agency determination, verification of the
existence and amount of the debt; standards for collecting debts in
installment payments; the assessment of interest, penalties, and
administrative costs on delinquent debts; standards for the compromise
of overdue debt; standards to be followed in determining whether to
suspend or terminate collection action; the required referral of
delinquent debts to FMS for collection; the reporting of debts to
consumer reporting agencies and the use of credit reports; and the sale
of delinquent debts. The Director also must follow the procedures for
the specific type of offset remedy to be utilized, which are provided
by the following subparts of part 313: Subpart B (administrative
offset), subpart C (salary offset), subpart D (administrative wage
garnishment), subpart E (tax refund offset), subpart F (Civil Service
retirement and disability fund offset), and subpart G (mandatory
centralized administrative offset).
The criminal restitution orders that the FDIC holds in almost all
instances are initially acquired by the FDIC in its receivership
capacity. Over time, the FDIC as receiver has transferred a substantial
number of individual restitution orders to the FDIC in its corporate
capacity, with the result that today criminal restitution debt is held
by the FDIC in both its receivership and corporate capacities. Because
part 313 as currently drafted excludes all of the FDIC's receivership
and liquidation functions (among other functions) from its scope, it
must be amended for the FDIC to have the authority to collect criminal
restitution debt through TOP.
The legal authority for the proposed amendments is found in the
DCIA itself. The DCIA's definition of ``debt'' includes criminal
restitution debt owed to federal agencies including the FDIC. Thus,
section 3701(b)(1)(D) of the DCIA defines ``claim'' or ``debt'' to
include:
(D) Any amount the United States is authorized by statute to
collect for the benefit of any person.
Criminal restitution debt owed to the FDIC falls squarely within
this definition, regardless of whether that debt is owed to the FDIC in
its receivership capacity or its corporate capacity.
The United States Department of Justice is primarily responsible
for collecting unpaid federal criminal restitution debt. The Mandatory
Victims Restitution Act (MVRA) of 1996, 18 U.S.C. 3556 & 3663 seq.,
which makes imposition of restitution a mandatory component of
sentencing for many federal crimes, including banking crimes, expressly
provides in section 3664(m) that the United States has the authority to
enforce all federal criminal restitution orders in all cases. Moreover,
the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. 3001 et
seq., originally enacted in 1990, is the primary statutory authority
that DOJ uses to collect criminal restitution orders on behalf of the
victims identified in those orders, which include the FDIC in the case
of restitution orders held by the FDIC. The FDCPA also explicitly
defines ``debt'' to include ``an amount that is owing to the United
States on account of * * * restitution.'' 28 U.S.C. 3002(3)(B). United
States Attorney's Offices throughout the United States use the MVRA and
FDCPA to collect and enforce criminal restitution debt on behalf of the
FDIC and other victims including other federal agencies. If DOJ does
not enforce an individual order, the victim named in the order may seek
to enforce it instead.
II. Discussion of the Amendments to Part 313
The amendments would modify part 313 in three ways:
1. A number of individual sections of part 313 are amended to
provide that part 313 applies to criminal restitution debt owed to the
FDIC in either its corporate or receivership capacity in addition to
the already-covered corporate debts currently identified in Sec.
313.1.
2. Section 313.4 is amended to provide that the FDIC Board
delegates to the Director of the Division of Resolutions and
Receiverships (DRR) authority to refer delinquent criminal restitution
debt to FMS.
3. A new section 313.125 is added to subpart E, the Tax Refund
Offset regulations, to clarify that duplicate notice to a debtor is not
required if notice and an opportunity for review were previously
provided to the same debtor. This provision is identical to the
existing Sec. 313.28 found in the Administrative Offset regulations in
subpart B. While Sec. 313.28 arguably already applies to subpart E
(because tax refund offset is generally considered to be a form of
``administrative'' offset), the new Sec. 313.125 is added to eliminate
any
[[Page 75661]]
uncertainty in the FDIC's regulations on this point.
III. Administrative Procedure Act
Neither advance notice of proposed rulemaking nor an opportunity to
comment on the amendments to part 313 is required under the
Administrative Procedure Act (APA), because these amendments relate
solely to agency procedure and practice. 5 U.S.C. 553(b)(3)(A).
IV. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, the FDIC hereby
certifies that the amendments to part 313 do not have a significant
economic impact on a substantial number of small business entities. As
amended, part 313 applies primarily to federal agencies and to a
limited number of individuals and/or business entities. 5 U.S.C.
605(b).
V. Paperwork Reduction Act
This rule is not subject to the Paperwork Reduction Act, 44 U.S.C.
3501, because it does not contain any new information collection
requirements.
VI. Assessment of Impact of Federal Regulation on Families
The FDIC has determined that part 313 as amended will not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999 (Pub.
L. 105-277, 112 Stat. 2681).
VII. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) provides generally for agencies to report
rules to Congress for review. The reporting requirement is triggered
when the FDIC issues a final rule as defined by the APA at 5 U.S.C.
551. Because the FDIC is issuing a final rule as defined by the APA,
the FDIC will file the reports required by SBREFA. The Office of
Management and Budget has determined that this final rule does not
constitute a ``major rule'' as defined by SBREFA.
List of Subjects in 12 CFR Part 313
Claims, Government employees, Wages.
0
For the reasons set forth in the preamble, the FDIC hereby amends part
313 of chapter III of title 12 of the Code of Federal Regulations as
follows:
PART 313--PROCEDURES FOR COLLECTION OF CORPORATE DEBT AND CRIMINAL
RESTITUTION DEBT
0
1. The authority citation for part 313 is revised to read as follows:
Authority: 12 U.S.C. 1819(a); 5 U.S.C. 5514; Pub. L. 104-143;
110 Stat. 1321 (31 U.S.C. 3701, 3711, 3716).
0
2. Revise Sec. 313.1(c) to read as follows:
Sec. 313.1 Scope.
* * * * *
(c) This part applies only to:
(1) Debts owed to and payments made by the FDIC acting in its
corporate capacity, that is, in connection with employee matters such
as travel-related claims and erroneous overpayments, contracting
activities involving corporate operations, debts related to requests to
the FDIC for documents under the Freedom of Information Act (FOIA), or
where a request for an offset is received by the FDIC from another
federal agency; and
(2) Criminal restitution debt owed to the FDIC in either its
corporate capacity or its receivership capacity.
(3) With the exception of criminal restitution debt noted in
paragraph (c)(2) of this section, this part does not apply to debts
owed to or payments made by the FDIC in connection with the FDIC's
liquidation, supervision, enforcement, or insurance responsibilities,
nor does it limit or affect the FDIC's authority with respect to debts
and/or claims pursuant to 12 U.S.C. 1819(a) and 1820(a).
* * * * *
0
3. In Sec. 313.3 revise paragraphs (d), (h), and (j); redesignate
paragraphs (n) through (v) as paragraphs (o) through (w), respectively;
add a new paragraph (n); and revise the newly designated paragraph (r)
to read as follows:
Sec. 313.3 Definitions.
* * * * *
(d) Certification means a written statement transmitted from a
creditor agency to a paying agency for purposes of administrative or
salary offset, to FMS for offset or to the Secretary of the Treasury
for centralized administrative offset. The certification confirms the
existence and amount of the debt and verifies that required procedural
protections have been afforded the debtor. Where the debtor requests a
hearing on a claimed debt, the decision by a hearing official or
administrative law judge constitutes a certification.
* * * * *
(h) Debt means an amount owed to the United States from loans
insured or guaranteed by the United States and all other amounts due
the United States from fees, leases, rents, royalties, services, sales
of real or personal property, overpayments, penalties, damages,
interest, restitution, fines and forfeitures, and all other similar
sources. For purposes of this part, a debt owed to the FDIC constitutes
a debt owed to the United States.
* * * * *
(j) Director means the Director of the Division of Finance (DOF),
the Director of the Division of Administration (DOA), or the Director
of the Division of Resolutions and Receiverships (DRR), as applicable,
or the applicable Director's delegate.
* * * * *
(n) Division of Resolutions and Receiverships (DRR) means the
Division of Resolutions and Receiverships of the FDIC.
* * * * *
(r) Notice of Intent to Offset or Notice of Intent means a written
notice from a creditor agency to an employee, organization, entity, or
restitution debtor that claims a debt and informs the debtor that the
creditor agency intends to collect the debt by administrative offset.
The notice also informs the debtor of certain procedural rights with
respect to the claimed debt and offset.
* * * * *
0
4. Revise the introductory paragraph in Sec. 313.4 to read as follows:
Sec. 313.4 Delegations of authority.
Authority to conduct the following activities to collect debt,
other than criminal restitution debt, on behalf of the FDIC in its
corporate capacity is delegated to the Director of DOA or Director of
DOF, as applicable; and authority to collect criminal restitution debt
on behalf of the FDIC in either its receivership or corporate capacity
is delegated to the Director of DRR; or to the applicable Director's
delegate; to:
* * * * *
0
5. Redesignate Sec. 313.125 through 313.127 as Sec. 313.126 through
313.128 and add a new Sec. 313.125 to read as follows:
Sec. 313.125 No requirement for duplicate notice.
Where the director has previously given a debtor any of the
required notice and review opportunities with respect to a particular
debt, the Director is not required to duplicate such notice and review
opportunities prior to initiating tax refund offset.
By order of the Board of Directors.
Dated at Washington, DC, this 5th day of December, 2006.
[[Page 75662]]
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. E6-21470 Filed 12-15-06; 8:45 am]
BILLING CODE 6714-01-P
