[Federal Register: December 4, 2002 (Volume 67, Number 233)]
[Proposed Rules]
[Page 72128-72130]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de02-19]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 31
RIN 0991-AB17
Tax Refund Offset
AGENCY: Department of Health and Human Services.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Health and Human Services (HHS) proposes to
amend its tax refund offset regulations to reflect (1) the tax refund
offset provisions of the Deficit Reduction Act of 1984 as amended by
the Debt Collection Improvement Act of 1996, codified at 31 U.S.C.
3720A, and (2) implementing regulations issued by the Department of the
Treasury at 31 CFR 285.2. The proposed rule will amend the process by
which HHS certifies and refers past-due debt to the Department of
Treasury for tax refund offset to satisfy debt owed to the HHS.
DATES: Submit comments on or before February 3, 2003.
ADDRESSES: Send all comments concerning this proposed rule to:
Katherine M. Drews, Deputy Associate General Counsel, Office of the
General Counsel, General Law Division, Room 5362, 330 Independence
Avenue, SW., Washington, DC 20201.
FOR FURTHER INFORMATION CONTACT: Katherine M. Drews, 202-619-0150.
SUPPLEMENTARY INFORMATION:
Background
This proposed regulation implements the tax refund offset
provisions of the Deficit Reduction Act of 1984 as amended by the Debt
Collection Act of 1996 (DCIA), codified at 31 U.S.C. 3720A, and the
implementing regulations issued by the Department of the Treasury at 31
CFR 285.2. Within this framework, a Federal agency owed a past-due debt
must notify the Secretary of the Treasury of such debt for collection
by tax refund offset in accordance with regulations promulgated by the
Secretary of the Treasury. The Financial Management Service (FMS), a
bureau of the Department of the Treasury (Treasury), is responsible for
promulgating the regulations implementing this and other debt
collection tools established by the DCIA. The Treasury Final Rule, as
amended, is published at 31 CFR 285.2.
Basic Provisions
In accordance with the requirements of the DCIA and the
implementing regulations issued by the Department of Treasury at 31 CER
285.2, the proposed regulation establishes the rules and procedures for
certifying and referring a past-due debt to FMS for tax refund offset,
correcting and updating referral information transmitted to FMS, and
providing the debtor with written notice at least 60 days before the
Department refers a debt to FMS. This written notice informs the debtor
of the nature and amount of the debt, that the debt is past-due and
legally enforceable, that the Department intends to enforce collection
by referring the debt to the Department of Treasury for tax refund
offset, and that the debtor has a right to inspect and copy Department
records relating to the debt, enter into a repayment agreement, and
request review and present evidence that all or part of the debt is not
past-due or legally enforceable.
Rules and Procedures
Except for minor changes to make the provisions agency-specific,
the proposed rule is substantially identical to the Treasury Final
Rule. In accordance with the substantive and procedural requirements of
the DCIA and the Treasury Final Rule, this proposed rule would
establish HHS rules and procedures for:
1. Certifying and referring a past-due debt to FMS for tax refund
offset.
2. Correcting and updating referral information transmitted to FMS.
3. Providing the debtor with written notice at least 60 days before
referring a debt to FMS. This written notice must inform the debtor of
the nature and amount of the debt, that the debt is past-due and
legally enforceable, that the Department intends to enforce collection
by referring the debt to the Department of Treasury for tax refund
offset, and that the debtor has a right to inspect and copy Department
records relating to the debt, enter into a repayment agreement, and
request review and present evidence that all or part of the debt is not
past-due or legally enforceable.
Economic Impact
We have examined the impact of this rule as required by Executive
Order 12866 (September 1993, Regulatory Planning and Review), as
amended by Executive Order 13258 (February 2002, Amending Executive
Order 12866 on Regulatory Planning and Review) and the Regulatory
Flexibility Act (RFA) (September 19, 1980; Pub. L. 96-354), the
Unfunded Mandated Reform Act of 1995 (Pub. L. 104-4), and Executive
Order 13132 (August 1999, Federalism).
Executive Order 12866 (the Order), as amended by Executive Order
13258, directs agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize the benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). A regulatory impact analysis (RIA) must be
prepared for major rules with economically significant effects ($100
million or more in 1 year). We have determined that the proposed rule
is consistent with the principles set forth in the Order, and we find
that the proposed rule would not have an effect on the economy that
exceeds $100 million in any one year. In addition, this rule is not a
major rule as defined at U.S.C. 804(2). In accordance with the
provisions of the Order, the rule was reviewed by the Office of
Management and Budget.
It is hereby certified under the RFA that this proposed regulation,
will not have a significant economic impact on a substantial number of
small entities. This proposed rule applies only to individuals with
past-due debts owed to the United States.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule that may result in expenditure of in any I year by
State, local, or tribunal governments, in the aggregate, or by the
private sector, of $100 million. As noted above, we find that the
proposed rule would not have an effect of this magnitude on the
economy.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. We have reviewed the proposed rule under the threshold
criterial of Executive Order 13132, Federalism, and have determined
that this proposed rule would not have substantial direct impact on
States, or on the distribution of power and responsibilities among the
various levels of government. As there are no Federalism implications,
a Federalism impact statement is not required.
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For purposes of the Paperwork Reduction Act, 44 U.S.C. chapter 35,
this proposed rule will impose no new reporting or record-keeping
requirements on any member of the public.
List of Subjects in 45 CFR Part 31
Administrative practice and procedure, Taxes, Claims, and Debts.
For the reasons set forth in the preamble, 45 CFR Subtitle A Part
31 is proposed to be revised as follows:
PART 31--REFERRAL OF DEBT TO IRS FOR TAX REFUND OFFSET
Sec.
31.1 Purpose and scope.
31.2 Definitions.
31.3 General rule.
31.4 Certification and referral of debt.
31.5 Notice.
31.6 Review of Departmental records.
31.7 Review of a determination that a debt is past-due and legally
enforceable.
Authority: 31 U.S.C. 3720A, 31 C.F.R. 285.2, E.O. 12866, E.O.
13258.
Sec. 31.1 Purpose and scope.
(a) Purpose. This part prescribes the Department's standards and
procedures for submitting past-due, legally enforceable debts to the
Department of the Treasury for collection by tax refund offset.
(b) Authority. These standards and procedures are authorized under
tax refund offset provision of the Deficit Reduction Act of 1984, as
amended by the Debt Collection Improvement Act of 1996, codified at 31
U.S.C. 3720A, and implementing regulations issued by the Department of
the Treasury at 31 CFR 285.2.
(c) Scope. (1) This part applies to all Departmental Operating
Divisions and Regional Offices that administer a program that gives
rise to a past-due non-tax debt owed to the United States, and to all
officers or employees of the Department authorized to collect such
debt.
(2) Nothing in this part precludes the Department from pursuing
other debt collection procedures, including administrative wage
garnishment under part 32 of this title, to collect a debt that has
been submitted to the Department of the Treasury under this part. The
Department may use such debt collection procedures separately or in
conjunction with the offset collection procedures of this part.
Sec. 31.2 Definitions.
In this part, unless the context otherwise requires:
Administrative offset means withholding funds payable by the United
States (including funds payable by the United States on behalf of a
State government) to, or held by the United States for, a person to
satisfy a claim.
Day means calendar day. For purposes of computation, the last day
of the period will be included unless it is a Saturday, Sunday, or a
Federal legal holiday, in which case the next business day will be
considered the last day of the period.
Debt or claim means an amount of money, funds, or other property
determined by an appropriate official of the Federal government to be
owed to the United States from any individual, entity, organization,
association, partnership, corporation, or State or local government or
subdivision, except another Federal agency.
Debtor means an individual, organization, association, partnership,
corporation, or State or local government or subdivision indebted to
the Government, or the person or entity with legal responsibility for
assuming the debtor's obligation.
Department means the Department of Health and Human Services, and
each of its Operating Divisions and regional offices.
Evidence of service means information retained by the Department
indicating the nature of the document to which it pertains, the date of
mailing of the document, and the address and name of the debtor to whom
it is being sent. A copy of the dated and signed written notice of
intent to offset provided to the debtor pursuant to this part may be
considered evidence of service for purposes of this regulation.
Evidence of service may be retained electronically so long as the
manner of retention is sufficient for evidentiary purposes.
FMS means the Financial Management Service, a bureau within the
Department of the Treasury.
IRS means the Internal Revenue Service, a bureau of the Department
of the Treasury. Legally enforceable means that there has been a final
agency determination that the debt, in the amount stated, is due and
there are no legal bars to collection action.
Operating division means each separate component within the
Department of Health and Human Services, including, but not limited to,
the Administration for Children and Families, the Administration on
Aging, the Centers for Disease Control and Prevention, the Centers for
Medicare & Medicaid Services, the Food and Drug Administration, the
National Institutes of Health, and the Office of the Secretary.
Past-due debt means a debt which the debtor does not pay or
otherwise resolve by the date specified in the initial demand for
payment, or in an applicable written repayment agreement or other
instrument, including a post-delinquency repayment agreement.
Secretary means the Secretary of the Department of Health and Human
Services, or the Secretary's designee within any Operating Division or
Regional Office.
Taxpayer identifying number means the identifying number described
under section 6109 of the Internal Revenue Code of 1986 (26 U.S.C.
6109). For an individual, the taxpayer identifying number is the
individual's social security number.
Tax refund offset means withholding or reducing a tax refund
payment by an amount necessary to satisfy a debt owed to the United
States by the payee(s) of a tax refund payment.
Tax refund payment means any overpayment of Federal taxes to be
refunded to the person making the overpayment after the IRS makes the
appropriate credits as provided in 26 U.S.C. 6402(a) and 26 CFR 6402-
3(a)(6)(i) for any liabilities for any tax on the part of the person
who made the overpayment.
Sec. 31.3 General rule.
(a) Any past-due, legally enforceable debt of at least $25, or such
other minimum amount as determined by the Secretary of the Treasury,
shall be submitted to FMS for collection by tax refund offset.
(b) FMS will compare tax refund payment records, as certified by
the IRS, with records of debts submitted by the Department under this
part. A match will occur when the taxpayer identification number and
name of a payment certification record are the same as the taxpayer
identifying number and name control of a debtor record. When a match
occurs and all other requirements for tax refund offset have been met,
FMS will reduce the amount of any tax refund payment payable to a
debtor by the amount of any past-due legally enforceable debt. Any
amounts not offset will be paid to the payee(s) listed in the payment
certification record.
Sec. 31.4 Certification and referral of debt.
(a) Certification. The Secretary shall certify to FMS that:
(1) The debt is past-due and legally enforceable in the amount
submitted and that the Department will ensure that collections are
properly credited to the debt;
[[Page 72130]]
(2) Except in the case of a judgment debt or as otherwise allowed
by law, the debt is referred within ten (10) years after the
Department's right of action accrues;
(3) The Department has made reasonable efforts to obtain payment of
the debt, and has:
(i) Submitted the debt to FMS for collection by offset and complied
with the administrative offset provision of 31 U.S.C. 3716(a) and
related regulations, to the extent that collection by administrative
offset is not prohibited by statute;
(ii) Notified, or made a reasonable attempt to notify, the debtor
that the debt is past-due, and unless paid within 60 days of the date
of the notice, the debt may be referred to Treasury for tax refund
offset. For purposes of this regulation, the Department has made a
reasonable attempt to notify the debtor if the agency uses the current
address information contained in the Department's records related to
the debt. If address validation is desired or necessary, the Department
may obtain information from the IRS pursuant to 26 U.S.C. 6103
(m)(2)(4) or (5).
(iii) Given the debtor at least 60 days to present evidence that
all or part of the debt is not past due or not legally enforceable,
considered any evidence presented by the debtor, and determined that
the debt is past-due and legally enforceable; and
(iv) Provided the debtor with an opportunity to make a written
agreement to repay the debt; and
(4) The debt is at least $25.
(b) Referral. (1) The Secretary shall submit past-due, legally
enforceable debt information for tax refund offset in the time and
manner prescribed by the Department of the Treasury.
(2) For each debt referred under this part, the Secretary will
include the following information:
(i) The name and taxpayer identifying number, as defined in 26
U.S.C. 6109, of the debtor responsible for the debt;
(ii) The amount of such past-due and legally enforceable debt;
(iii) The date on which the debt became past-due; and
(iv) The designation of the Department referring the debt.
(c) Correcting and updating referral. (1) After referring a debt
under this part, the Secretary shall promptly notify the Department of
the Treasury if:
(i) An error was made with respect to information transmitted to
the Department of Treasury;
(ii) The Department receives a payment or credits a payment to the
account of a debtor referred for tax refund offset; or
(iii) The debt amount is otherwise incorrect.
(2) The Department shall provide the certification required under
paragraph (a) of this section for any increases to amounts owed.
(d) Rejection of certification. If the Department of Treasury
rejects a certification because it does not comply with the
requirements of paragraph (a) this section, upon notification of the
rejection and the reason(s) for rejection, the Secretary will resubmit
the debt with a corrected certification.
Sec. 31.5 Notice.
(a) Requirements. If not previously included in the initial demand
letter provided under Sec. 30.11, at least 60 days before referring a
debt for tax refund offset, the Secretary shall mail, by first class
mail to the debtor's last known address, written notice informing the
debtor of:
(1) The nature and amount of the debt;
(2) The determination that the debt is past-due and legally
enforceable, and unless paid within 60 days after the date of the
notice, the Secretary intends to enforce collection by referring the
debt the Department of the Treasury for tax refund offset; and
(3) The debtor's rights to:
(i) Inspect and copy Department records relating to the debt;
(ii) Enter into written agreement to repay the amount of the debt;
(iii) Request review and present evidence that all or part of the
debt is not past-due or not legally enforceable.
(b) The Secretary will retain evidence of service indicating the
date of mailing of the notice. The notice may be retained
electronically so long as the manner of retention is sufficient for
evidentiary purposes.
Sec. 31.6 Review of Departmental records.
(a) To inspect or copy Departmental records relating to the debt,
the debtor must send a written request to the address designated in the
notice described in Sec. 31.5. The request must be received by the
Department within 60 days from the date of the notice.
(b) In response to a timely request as described in paragraph (a)
of this section, the designated Department official shall notify the
debtor of the location and time when the debtor may inspect and copy
such records. If the debtor is unable to personally inspect such
records as the result of geographical or other constraints, the
Department will arrange to send copies of the records to the debtor.
Sec. 31.7 Review of a determination that a debt is past-due and
legally enforceable.
(a) Requesting a review.
(1) If the debtor believes that all or part of the debt is not
past-due or not legally enforceable, the debtor may request a review by
the Department by sending a written request to the address provided in
the notice. The written request must be received by the Department
within 60 days from the date of the notice.
(2) The request for review must be signed by the debtor, state the
amount disputed, and fully identify and explain the evidence that the
debtor believes supports the debtor's position. The debtor must submit
with the request any documents that the debtor wishes to be considered,
or the debtor must state in the request that additional information
will be submitted within the 60-day time period.
(3) Failure to timely request a review will be deemed an admission
by the debtor that the debt is past-due and legally enforceable, and
will result in a referral of the debt to the Department of the Treasury
without further action.
(b) Review. Upon the timely submission of evidence by the debtor,
the Department shall review the dispute and shall consider its records
and any documentation and evidence submitted by the debtor. The
Department shall make a determination based on the review of the
written record, and shall send a written notice of its decision to the
debtor. There is no administrative appeal of this decision.
(c) A debt that previously has been reviewed pursuant to this part,
or that has been reduced to a judgment, will not be reconsidered under
this part unless the evidence presented by the debtor disputes payments
made or events occurring subsequent to the previous review or judgment.
Dated: August 23, 2002.
Tommy G. Thompson,
Secretary.
[FR Doc. 02-30657 Filed 12-3-02; 8:45 am]
BILLING CODE 4150-26-P