[Federal Register: December 15, 2003 (Volume 68, Number 240)]
[Proposed Rules]
[Page 69634-69637]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de03-23]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 143
Collection of Claims Owed the United States Arising From
Activities Under the Commission's Jurisdiction
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commodity Futures Trading Commission (Commission) proposes
to revise its regulations governing the collection of claims owed to
the United States arising from activities under the Commission's
jurisdiction. The proposed revision implements the administrative wage
garnishment provisions of the Debt Collection Improvement Act of 1996
(DCIA). The DCIA authorizes Federal agencies to collect money from a
debtor's disposable income by means of administrative wage garnishment.
Prior to enactment of the DCIA, a court order was required for an
agency to garnish a debtor's wages. In accordance with the requirements
of the DCIA, the procedures being proposed by the Commission to garnish
wages administratively are based upon, and consistent with,
implementing regulations issued by the Department of the Treasury.
DATES: Comments must be received by January 14, 2004.
ADDRESSES: Comments should refer to ``Proposed Administrative Wage
Garnishment Rules'' and be submitted to the Office of the Secretariat,
Commodity Futures Trading Commission, Three Lafayette Center, 1155 21st
Street, NW., Washington, DC 20581.
FOR FURTHER INFORMATION CONTACT: Stephen Mihans, Esq., Office of
General Counsel, Commodity Futures Trading Commission, at (202) 418-5399 or smihans@cftc.gov.
SUPPLEMENTARY INFORMATION:
[[Page 69635]]
I. Background
Part 143 of the Commission's regulations, 17 CFR part 143, sets
forth the Commission's policies and procedures for collecting debts
owed to the United States arising from activities under the
Commission's jurisdiction. At present, the part 143 rules, which apply
to debts owed by persons not employed by the Federal government,
authorize collection by (1) administrative offset against obligations
owed to the debtor by the United States, (2) compromise (if the debt
owed is not more than $100,000), or (3) referral to the Department of
Justice for litigation.\1\ The part 143 rules were first published in
1985 (50 FR 5383) to implement the Federal Claims Collection Act of
1966, as amended by the Debt Collection Act of 1982, 31 U.S.C. 3701, et
seq. They were amended in 1992 (57 FR 61291) to increase the maximum
dollar amount of claims that the Commission itself may settle, and
again in 1996 (61 FR 55564) and 2000 (65 FR 45709) to adjust for
inflation the maximum dollar amount of civil penalties assessable for
violations of the Commodity Exchange Act and the Commission's
regulations and orders.\2\
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\1\ The collection of debts owed to the Commission by its
current employees or by the employees of other Federal agencies, and
of debts owed to other Federal agencies by current Commission
employees, is separately governed by part 141 of the Commission's
regulations, 17 CFR part 141.
\2\ The 1996 and 2000 amendments to the Commission's part 143
rules implemented the Federal Civil Penalties Inflation Adjustment
Act of 1990 (FCPIAA), as amended by the DCIA. The FCPIAA and the
relevant amendments made to the FCPIAA by the DCIA, are codified at
28 U.S.C. 2461 note.
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As a result of the Department of the Treasury's issuance of
regulations implementing the administrative wage garnishment provisions
of the DCIA, the Commission is proposing to further amend its part 143
rules. Under the DCIA, the head of a Federal agency administering a
program that gives rise to a delinquent non-tax debt owed to the United
States by an individual may garnish the individual's disposable pay to
collect the amount owed. See 31 U.S.C. 3720D. On May 6, 1998, the
Financial Management Service (FMS),\3\ a bureau of the Department of
the Treasury, promulgated regulations (63 FR 23156) establishing rules
and procedures governing administrative wage garnishment by Federal
agencies. See 31 CFR 285.11. Agencies that wish to use administrative
wage garnishment to collect delinquent debts must comply with all of
the requirements set forth in 31 CFR 285.11. They are permitted,
however, to prescribe their own rules for the conduct of administrative
wage garnishment hearings, so long as the rules are consistent with
criteria set forth in 31 CFR 285.11(f).
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\3\ On August 27, 1999, the Commission entered into a cross-
servicing agreement with the FMS, which allows the FMS to undertake
debt collection activities on behalf of the Commission. It is
anticipated that, pursuant to that agreement, the FMS also will
assist the Commission in collecting delinquent debts through
administrative wage garnishment.
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The Commission's proposal would revise existing Rule 143.1 by
adding administrative wage garnishment to the list of available debt
collection procedures. Existing Rules 143.2 through 143.8, which
address the collection of delinquent debt through administrative
offset, compromise, or referral to the Department of Justice for
litigation, would be grouped together as subpart A, ``General
Provisions.'' To address the collection of delinquent debt through
garnishment of the debtor's wages, a new subpart B, ``Administrative
Wage Garnishment,'' would be added to part 143. In addition to these
changes, the Commission's proposal would correct citations in part 143
to the Federal Claims Collections Standards to reflect their transfer
from part 4 to part 31 of the Code of Federal Regulations and make
other editorial changes of a non-substantive nature.
II. Overview of Proposed Wage Garnishment Procedures
Under proposed Rule 143.9, administrative wage garnishment
proceedings initiated by the Commission would be governed by the FMS
regulations codified at 31 CFR 285.11.\4\ Those regulations allow the
Commission to garnish the disposable pay of any individual, other than
an employee of the Federal government, who owes a delinquent non-tax
debt to the United States arising from an activity within the
Commission's jurisdiction. 31 CFR 285.11(d). At least 30 days before a
garnishment proceeding is initiated, the Commission (or FMS, acting on
the Commission's behalf) will send the debtor written notice informing
him or her of the nature and amount of the debt and the Commission's
intention to collect it through deductions from the debtor's pay, and
explaining the debtor's rights with respect to the proposed action. 31
CFR 285.11(e)(1).
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\4\ The Commission's use of other debt-collection measures set
forth in subpart A of the part 143 rules would not preclude it from
initiating an administrative wage garnishment proceeding against a
delinquent debtor.
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The debtor will be given an opportunity to inspect and copy
Commission records related to his or her debt, to enter into a written
repayment agreement on terms acceptable to the Commission, and to
request a hearing concerning the existence or amount of the debt or the
terms of the repayment schedule. 31 CFR 285.11(e)(2). If a hearing
request is received within 15 business days after the Commission's
notice is mailed to the debtor, a hearing must be held before a
garnishment order can be issued. 31 CFR 285.11(f)(4). For hearing
requests not received within 15 business days, the Commission need not
delay the issuance of the garnishment order prior to conducting a
hearing. 31 CFR 285.11(f)(5). The Commission may not garnish the pay of
a delinquent debtor who has been involuntarily separated from
employment until he or she has been reemployed continuously for at
least 12 months. 31 CFR 295.11(j). The debtor bears the burden of
informing the Commission of the circumstances surrounding an
involuntary separation from employment.
Within 30 days after a delinquent debtor fails to make a timely
request for a hearing or, if a timely request is received, within 30
days after a final decision is made to proceed with garnishment, the
Commission (or FMS, acting on the Commission's behalf) will mail a wage
garnishment order, in a form prescribed by the Department of the
Treasury, to the debtor's employer. 31 CFR 285.11(g). The order will
direct that the employer pay a specified portion of the debtor's wages
to the Federal government. Along with the order, the Commission (or
FMS, acting on the Commission's behalf) will send a certification form,
to be executed by the employer, addressing such matters as the debtor's
current employment status and the amount of disposable income available
for garnishment. 31 CFR 285.11(h). Although the employer must promptly
pay all amounts that are required to be withheld from the debtor's pay,
the employer will not be required to alter its normal pay cycle in
order to do so.
As provided by the DCIA, no more than 15 percent of a delinquent
debtor's disposable income may be garnished for each pay period. A
debtor may, at any time, seek review by the Commission of the amount
being withheld under an administrative wage garnishment order, based on
materially changed circumstances (such as disability, divorce, or
catastrophic illness) which result in financial hardship. The DCIA
makes it unlawful for an employer to take disciplinary action against
an employee based on the fact that the employee's pay is subject to
administrative wage garnishment. In addition, it authorizes the
Commission to sue an employer for amounts that are
[[Page 69636]]
not withheld under a garnishment order.
III. Administrative Wage Garnishment Hearings
If a delinquent debtor requests a hearing concerning the existence
or amount of his or her debt or the terms of repayment set forth in the
garnishment order, the hearing will be conducted by the Commission in
accordance with the requirements of 31 CFR 285.11(f). Under proposed
Rule 143.10, the Commission would authorize its Executive Director (or
any Commission employee designated by the Executive Director) to decide
whether the hearing will be oral or in writing, and to select a
qualified and impartial employee of the Commission to conduct the
hearing and render a decision. Consistent with the requirements of 31
CFR 285.11(f)(10), the Commission's proposed rules require that a
decision be issued within 60 days after the Commission's receipt of the
debtor's request for a hearing. The hearing official's decision would
be the final agency action for purposes of judicial review under the
Administrative Procedure Act, 7 U.S.C. 701, et seq.
The proposed rules state that, at the hearing, the Commission has
the burden of going forward to prove the existence and amount of the
debt. Depending on his or her claims, the debtor then would have to
establish, by a preponderance of the evidence, that no debt exists or
the amount of the debt is incorrect, that the terms of the repayment
schedule are either unlawful or would cause a financial hardship to the
debtor, or that collection of the debt may not be pursued due to the
operation of law. Although the FMS regulations require only that a
``summary record'' of the hearing be maintained, proposed Rule 143.10
would require that all testimony adduced at an oral hearing be
transcribed on the record and under oath or affirmation, and that all
documents presented for consideration by the hearing official be marked
as exhibits and retained in the record.
IV. Related Matters
A. Administrative Procedure Act
The proposed amendments to the Commission's part 143 rules
governing debt collection relate solely to agency organization,
procedure, and practice. Therefore, the provisions of the
Administrative Procedure Act, 5 U.S.C. 553, generally requiring notice
of proposed rulemaking and opportunity for public comment, are not
applicable. Moreover, because the rules implement a definitive
statutory scheme established by the DCIA, notice and an opportunity for
public comment are not required. However, since the proposed amendments
represent an additional tool in the Commission's debt-collection
efforts, the Commission has determined that it would be useful to
receive comments from any interested members of the public before
proceeding to final rulemaking.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-611,
requires that, in proposing rules, agencies consider the impact of
those rules on small businesses. Since the proposed rules are not being
effected pursuant to 5 U.S.C. 553, the analysis and certification
process mandated by the RFA do not apply. In any event, the Chairman,
on behalf of the Commission, certifies that the proposed rules will not
have a significant economic impact on a substantial number of small
businesses. Although an employer of a delinquent debtor will have to
certify certain information about the debtor, such as the debtor's
employment status and current earnings, this information is already
contained in the employer's payroll records. Moreover, an employer
would not be required to vary its normal payroll cycle to accommodate
an administrative wage garnishment order.
C. Paperwork Reduction Act
The proposed part 143 rules do not impose a burden within the
meaning and intent of the Paperwork Reduction Act of 1980, 44 U.S.C.
3501, et seq.
D. Cost-Benefit Analysis
Section 15(a) of the Commodity Exchange Act, 7 U.S.C. 19(a),
requires the Commission to consider the costs and benefits of its
action before issuing a new regulation. The Commission understands
that, by its terms, section 15(a) does not require the Commission to
quantify the costs and benefits of a new regulation or to determine
whether the benefits of the proposed regulation outweigh its costs. Nor
does it require that each proposed rule be analyzed in isolation when
that rule is a component of a larger package of rules or rule
revisions. Rather, section 15(a) simply requires the Commission to
``consider the costs and benefits'' of its action.
Section 15(a) further specifies that costs and benefits shall be
evaluated in light of five broad areas of market and public concern:
Protection of market participants and the public; efficiency,
competitiveness, and financial integrity of futures markets; price
discovery; sound risk management practices; and other public interest
considerations. Accordingly, the Commission can, in its discretion,
give greater weight to any one of the five enumerated areas of concern
and can, in its discretion, determine that notwithstanding its costs, a
particular rule is necessary or appropriate to protect the public
interest or to effectuate any of the provisions, or accomplish any of
the purposes, of the Commodity Exchange Act.
The proposed administrative wage garnishment rules are not related
to the marketplace and thus should not affect the protection of market
participants; the efficiency, competitiveness, and financial integrity
of futures markets; price discovery; or sound risk management
practices. These proposed rules, however, do address other public
interest considerations, namely, the collection of debts owed to the
United States arising from activities under the Commission's
jurisdiction. The costs associated with implementing administrative
wage garnishment, which are mandated by the DCIA and 31 CFR 285.11,
will be small. On the other hand, the benefits include providing an
additional means to prevent persons who have been found liable for
violating the Commodity Exchange Act or the Commission's regulations or
orders from avoiding payment of monetary sanctions lawfully imposed on
them.
List of Subjects in 17 CFR Part 143
Civil monetary penalty, Claims.
In consideration of the foregoing, the Commission proposes to amend
chapter 1 of title 17 of the Code of Federal Regulations as follows:
PART 143--COLLECTION OF CLAIMS OWED THE UNITED STATES ARISING FROM
ACTIVITIES UNDER THE COMMISSION'S JURISDICTION
1. The authority citation for part 143 is revised to read as
follows:
Authority: 7 U.S.C. 9 and 15, 9a, 12a(5), 13a, 13a-1(d), and
13(a); 31 U.S.C. 3701-3720E; 28 U.S.C. 2461 note.
2. Section 143.1 is revised to read as follows:
Sec. 143.1 Purpose.
This part provides procedures that the Commission will use to
collect debts owed the United States arising from activities under the
Commission's jurisdiction. As applicable, these procedures are based
upon, and conform to, the Federal Claims Collection Act, as amended, 31
U.S.C. 3701-3720E; the Federal Claims Collection Standards, 31 CFR
parts 900-905, issued by the Department of the Treasury and the
Department of Justice;
[[Page 69637]]
administrative wage garnishment regulations issued by the Department of
the Treasury, 31 CFR 285.11; and other laws applicable to the
collection of non-tax debts owed to the United States arising from
activities under the Commission's jurisdiction. Subpart A describes
procedures for collection by offset against obligations of the United
States to the debtor, by compromise, and by referral to the Department
of Justice for litigation. It also sets forth the Commission's policy
on collecting interest on unpaid claims, the method used in calculating
such interest, and the maximum inflation-adjusted civil monetary
penalties that may be assessed and enforced for each violation of the
Commodity Exchange Act or regulations or orders of the Commission
promulgated thereunder. Subpart B describes procedures for collection
by administrative garnishment of the debtor's wages.
3. Sections 143.2 through 143.8 are designated as subpart A of part
143, and a new heading, ``Subpart A--General Provisions,'' is added
above section 143.2 to read as follows:
Subpart A--General Provisions
4. Section 143.2 is amended by revising paragraph (c) to read as
follows:
Sec. 143.2 Notice of claim.
* * * * *
(c) If no response or an unsatisfactory response is received by the
date indicated in the notice, the Commission may take further action as
appropriate under the Commodity Exchange Act or regulations thereunder,
or under 31 CFR parts 900-905 or the Federal Claims Collection Act, as
amended, 31 U.S.C. 3701-3720E.
5. Section 143.7 is amended by revising paragraph (a) to read as
follows:
Sec. 143.7 Delegation of authority to the Executive Director.
(a) The Commission hereby delegates, until such time as the
Commission orders otherwise, to the Executive Director or to any
Commission employee under the Executive Director's supervision as he or
she may designate, authority to take action to carry out subpart A and
subpart B of this Part and the requirements of 31 CFR parts 900-905 and
31 CFR 285.11.
* * * * *
6. A new subpart B consisting of Sec. Sec. 143.9 and 143.10 is
added to part 143, to read as follows:
Subpart B--Administrative wage garnishment
Sec. 143.9 Administrative wage garnishment orders.
Whenever an individual owes the United States a delinquent non-tax
debt arising from activities under the Commission's jurisdiction, the
Commission, or another federal agency collecting the debt on behalf of
the Commission, may initiate administrative proceedings to garnish the
disposable income of the delinquent debtor in accordance with the
requirements of, and the procedures set forth in, 31 CFR 285.11. The
Commission's use of other debt-collection measures set forth in subpart
A of this part does not preclude the initiation of an administrative
wage garnishment proceeding against a delinquent debtor.
Sec. 143.10 Garnishment hearings.
Any oral or written hearing required to establish the Commission's
right to collect a delinquent debt through administrative wage
garnishment will be presided over by a hearing official designated by
the Executive Director. Any qualified and impartial employee of the
Commission designated by the Executive Director may serve as a hearing
official. All documents presented to the hearing official for his or
her consideration shall be marked as exhibits and retained in the
record. All testimony given at an oral hearing, either in person or by
telephone, shall be under oath or affirmation. A transcript of the
hearing shall be prepared and made part of the record.
Issued in Washington, DC, on December 9, 2003, by the
Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 03-30877 Filed 12-12-03; 8:45 am]
BILLING CODE 6351-01-P