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2000 - Rules and Regulations
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PART 313PROCEDURES FOR CORPORATE DEBT COLLECTION
Subpart AScope, Purpose, Definitions and Delegations of
Authority
Sec. 313.1
Scope.
313.2
Purpose
313.3
Definitions.
313.4
Delegations of authority.
313.5313.19 [Reserved]
Subpart BAdministrative Offset
313.20
Applicability and scope.
313.21
Definitions.
313.22
Collection.
313.23
Offset prior to completion of procedures.
313.24
Omission of procedures.
313.25
Debtor's rights.
313.26
Interest.
313.27
Refunds.
313.28
No requirement for duplicate notice.
313.29
Requests for offset to other federal agencies.
313.30
Requests for offset from other federal agencies.
313.31313.39 [Reserved]
Subpart CSalary Offset
313.40
Scope.
313.41
Notice requirement where FDIC is creditor agency.
313.42
Procedures to request a hearing.
313.43
Failure to timely submit request for hearing.
313.44
Procedure for hearing.
313.45
Certification of debt by FDIC as creditor agency.
313.46
Notice of salary offset where FDIC is the paying agency.
313.47
Voluntary repayment agreements as alternative to salary offset where
the FDIC is the creditor agency.
313.48
Special review of repayment agreement or salary offset due to changed
circumstances.
313.49
Coordinating salary offset with other agencies.
313.50
Interest, penalties, and administrative costs.
313.51
Refunds.
313.52
Request from a creditor agency for services of a hearing official.
313.53
Non-waiver of rights by payments.
313.54
Exception to due process procedures.
313.55
Salary adjustments.
313.56313.79 [Reserved]
Subpart DAdministrative Wage Garnishment
313.80
Scope and purpose.
313.81
Notice.
313.82
Debtor's rights.
313.83
Form of hearing.
313.84
Effect of timely request.
313.85
Failure to timely request a hearing.
313.86
Hearing official.
313.87
Procedure.
313.88
Format of hearing.
{{12-29-06 p.2238}}
313.89
Date of decision.
313.90
Content of decision.
313.91
Finality of agency action.
313.92
Failure to appear.
313.93
Wage garnishment order.
313.94
Certification by employer.
313.95
Amounts withheld.
313.96
Exclusions from garnishment.
313.97
Financial hardship.
313.98
Ending garnishment.
313.99
Prohibited actions by employer.
313.100
Refunds.
313.101
Right of action.
313.102313.119 [Reserved]
Subpart ETax Refund Offset
313.120
Scope.
313.121
Definitions.
313.122
Notification of debt to FMS.
313.123
Certification and referral of debt.
313.124
Pre-offset notice and consideration of evidence.
313.125
Referral of past-due, legally enforceable debt.
313.126
Correcting and updating referral.
313.127
Disposition of amounts collected.
313.128313.139 [Reserved]
Subpart FCivil Service Retirement and Disability Fund Offset
313.140
Future benefits.
313.141
Notification to OPM.
313.142
Request for administrative offset.
313.143
Cancellation of deduction.
313.144313.159 [Reserved]
Subpart GMandatory Centralized Administrative Offset
313.160
Treasury notification.
313.161
Certification of debt.
313.162
Compliance with 31 CFR part 285.
313.163
Notification of debts of 180 days or less.
313.164313.180 [Reserved]
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).
[SOURCE: The provisions of this Part 313 appear at
67
Fed. Reg. 48527, July 25, 2002, effective August 26, 2002,
except as otherwise noted]
Subpart AScope, Purpose, Definitions and Delegations of
Authority
§ 313.1 Scope.
This part establishes FDIC procedures for the collection of certain
debts owed to the United States.
(a) This part applies to collections by the FDIC from:
(1) Federal employees who are indebted to the FDIC;
(2) Employees of the FDIC who are indebted to other agencies; and
(3) Other persons, organizations, or entities that are indebted
to the FDIC, except those excluded in paragraph (b)(3) of this section.
(b) This part does not apply:
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(1) To debts or claims arising under the Internal Revenue Code of
1986 (Title 26, U.S. Code), the Social Security Act (42 U.S.C. 301
et seq.), or the tariff laws of the United States;
(2) To a situation to which the Contract Disputes Act (41 U.S.C.
601 et seq.) applies; or
(3) In any case where collection of a debt is explicitly provided
for or prohibited by another statute.
(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).
(d) Nothing in this part 313 precludes the compromise, suspension,
or termination of collection actions, where appropriate, under:
standards implementing the Debt Collection Improvement Act (DCIA) (31
U.S.C. 3711 et seq.), the Federal Claims Collection
Standards (FCCS) (31 CFR chapter IX and parts 900 through 904); or any
other applicable law.
[Codified to 12 C.F.R. § 313.1]
[Section 313.1 amended at 71 Fed. Reg. 75661, December 18,
2006]
§ 313.2 Purpose.
(a) The purpose of this part is to implement federal statutes and
regulatory standards authorizing the FDIC to collect debts owed to the
United States. This part is consistent with the following federal
statutes and regulations:
(1) DCIA at 31 U.S.C. 3711 (collection and compromise of claims);
section 3716 (administrative offset), section 3717 (interest and
penalty on claims), and section 3718 (contracts for collection
services);
(2) 5 U.S.C. 5514 (salary offset);
(3) 5 U.S.C. 5584 (waiver of claims for overpayment);
(4) 31 CFR chapter IX and parts 900 through 904 (Federal Claims
Collection Standards);
(5) 5 CFR part 550, subpart K (salary offset);
(6) 31 U.S.C. 3720D, 31 CFR 285.11 (administrative wage
garnishment);
(7) 26 U.S.C. 6402(d), 31 U.S.C. 3720A and 31 CFR 285.2 (tax
refund offset); and
(8) 5 CFR 831.1801 through 1808 (U.S. Office of Personnel
Management (OPM) offset).
(b) Collectively, these statues and regulations prescribe the
manner in which federal agencies should proceed to establish the
existence and validity of debts owed to the federal government and
describe the remedies available to agencies to offset valid debts.
[Codified to 12 C.F.R. § 313.2]
§ 313.3 Definitions.
Except where the context clearly indicates otherwise or where the
term is defined elsewhere in this subpart, the following definitions
shall apply to this subpart.
(a) Agency means a department, agency, court, court
administrative office or instrumentality in the executive, judicial, or
legislative branch of government, including government corporations.
(b) Board means the Board of Directors of the FDIC.
(c) Centralized administrative offset means the
mandatory referral to the Secretary of the Treasury by a creditor
agency of a past due debt which is more than 180 days delinquent, for
the purpose of collection under the Treasury's centralized offset
program.
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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.
(e) Chairman means the Chairman of the FDIC.
(f) Compromise means the settlement or forgiveness of a
debt under 31 U.S.C. 3711, in accordance with standards set forth in
the FCCS and applicable federal law.
(g) Creditor agency means an agency of the federal
government to which the debt is owed, or a debt collection center when
acting on behalf of a creditor agency to collect a debt.
(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.
(i) Debt collection center means the Department of the
Treasury or other government agency or division designated by the
Secretary of the Treasury with authority to collect debts on behalf of
creditor agencies in accordance with 31 U.S.C. 3711(g).
(j) Director means the Director of the Division of
Finance (DOF) or 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.
(k) Disposable pay means that part of current adjusted
basic pay, special pay, incentive pay, retired pay, retainer pay, and,
in the case of an employee not entitled to adjusted basic pay, other
authorized pay, remaining for each pay period after the deduction of
any amount required by law to be withheld. The FDIC shall allow the
following deductions in determining the amount of disposable pay that
is subject to salary offset:
(1) Federal employment taxes;
(2) Federal, state, or local income taxes to the extent
authorized or required by law, but no greater than would be the case if
the employee claimed all dependents to which he or she is entitled and
such additional amounts for which the employee presents evidence of a
tax obligation supporting the additional withholding;
(3) Medicare deductions;
(4) Health insurance premiums;
(5) Normal retirement contributions, including employee
contributions to the Thrift Savings Plan or the FDIC 401(k) Plan;
(6) Normal life insurance premiums (e.g., Serviceman's Group
Life Insurance and "Basic Life" Federal Employee's Group Life
Insurance premiums), not including amounts deducted for supplementary
coverage;
(7) Amounts mandatorily withheld for the United States Soldiers'
and Airmen's Home;
(8) Fines and forfeiture ordered by a court-martial or by a
commanding officer.
(l) Division of Administration (DOA) means the Division
of Administration of the FDIC.
(m) Division of Finance (DOF) means the Division of
Finance of the FDIC.
(n) Division of Resolutions and Receiverships (DRR)
means the Division of Resolutions and Receiverships of the FDIC.
(o) Federal Claims Collection Standards (FCCS) means
standards published at 31 CFR chapter IX and parts 900 through 904.
(p) Garnishment means the process of withholding amounts
from the disposable pay of a person employed outside the federal
government, and the paying of those amounts to a creditor in
satisfaction of a withholding order.
(q) Hearing official means an administrative law judge
or other individual authorized to conduct a hearing and issue a final
decision in response to a debtor's request for hearing. A hearing
official may not be under the supervision or control of the Chairman or
FDIC Board when the FDIC is the creditor agency.
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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.
(s) Notice of Salary Offset means a written notice from
a paying agency to its employee informing the employee that salary
offset to collect a debt due to the creditor agency will begin at the
next officially established pay interval. The paying agency transmits
this notice to its employee after receiving a certification from the
creditor agency.
(t) Paying agency means the agency of the federal
government that employs the individual who owes a debt to an agency of
the federal government. The same agency may be both the creditor agency
and the paying agency.
(u) Salary offset means an administrative offset to
collect a debt under 5 U.S.C. 5514 by deduction(s) at one or more
officially established pay intervals from the current pay account of an
employee without his or her consent.
(v) Waiver means the cancellation, remission,
forgiveness or non-recovery of a debt allegedly owed by an employee to
an agency, as authorized or required by 5 U.S.C. 5584 or any other law.
(w) Withholding order means any order for withholding or
garnishment of pay issued by an agency, or judicial or administrative
body. For purposes of administrative wage garnishment, the terms
"wage garnishment order" and "garnishment order" have the
same meaning as "withholding order."
[Codified to 12 C.F.R. § 313.3]
[Section 313.3 amended at 71 Fed. Reg. 75661, December 18,
2006]
§ 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:
(a) Initiate and carry out the debt collection process on behalf of
the FDIC, in accordance with the FCCS;
(b) Accept or reject compromise offers and suspend or terminate
collection actions to the full extent of the FDIC's legal authority
under 12 U.S.C. 1819(a) and
1820(a), 31 U.S.C.
3711(a)(2), and any other applicable statute or regulation, provided,
however, that no such claim shall be compromised or collection action
terminated, except upon the concurrence of the FDIC General Counsel or
his or her designee;
(c) Report to consumer reporting agencies certain data pertaining
to delinquent debts, where appropriate;
(d) Use administrative offset procedures, including salary offset,
to collect debts; and
(e) Take any other action necessary to promptly and effectively
collect debts owed to the United States in accordance with the policies
contained herein and as otherwise provided by law.
[Codified to 12 C.F.R. § 313.4]
[Section 313.4 amended at 71 Fed. Reg. 75661, December 18,
2006]
§§ 313.5--313.19 [Reserved]
Subpart BAdministrative Offset
§ 313.20 Applicability and scope.
The provisions of this subpart apply to the collection of debts owed
to the United States arising from transactions with the FDIC.
Administrative offset is authorized under the DCIA. This subpart is
consistent with the FCCS on administrative offset issued by the
Department of Justice.
[Codified to 12 C.F.R. § 313.20]
{{10-31-07 p.2238.04}}
§ 313.21 Definitions.
(a) Administrative offset means withholding funds
payable by the United States to, or held by the United States for, a
person to satisfy a debt.
(b) Person includes a natural person or persons, profit
or nonprofit corporation, partnership, association, trust, estate,
consortium, or other entity which is capable of owing a debt to the
United States Government except that agencies of the United States, or
any state or local government shall be excluded.
[Codified to 12 C.F.R. § 313.21]
§ 313.22 Collection.
(a) The Director may collect a claim from a person by
administrative offset of monies payable by the Government only after:
(1) Providing the debtor with due process required under this
part; and
(2) Providing the paying agency with written certification that
the debtor owes the debt in the amount stated and that the FDIC, as
creditor agency, has complied with this part.
(b) Prior to initiating collection by administrative offset, the
Director should determine that the proposed offset is within the scope
of this remedy, as set forth in 31 CFR 901.3(a). Administrative offset
under 31 U.S.C. 3716 may not be used to collect debts more than 10
years after the federal government's right to collect the debt first
accrued, except as otherwise provided by law. In addition,
administrative offset may not be used when a statute explicitly
prohibits its use to collect the claim or type of claim involved.
(c) Unless otherwise provided, debts or payments not subject to
administrative offset under 31 U.S.C. 3716 may be collected by
administrative offset under common law, or any other applicable
statutory authority.
[Codified to 12 C.F.R. § 313.22]
§ 313.23 Offset prior to completion of procedures.
The FDIC may collect a debt by administrative offset prior to the
completion of the procedures described in § 313.25, if:
(a) Failure to offset a payment would substantially prejudice the
FDIC's ability to collect the debt; and
(b) The time before the payment is to be made does not reasonably
permit completion of the procedures described in § 313.25. Such prior
offsetting shall be followed promptly by the completion of the
procedures described in § 313.25.
[Codified to 12 C.F.R. § 313.23]
§ 313.24 Omission of procedures.
The FDIC shall not be required to follow the procedures described in
§ 313.25 where:
(a) The offset is in the nature of a recoupment (i.e.,
the FDIC may offset a payment due to the debtor when both the payment
due to the debtor and the debt owed to the FDIC arose from the same
transaction); or
(b) The debt arises under a contract as set forth in Cecile
Industries, Inc. v. Cheney, 995 F.2d 1052
(Fed. Cir. 1993), which provides that procedural protections under
administrative offset do not supplant or restrict established
procedures for contractual offsets accommodated by the Contracts
Disputes Act; or
(c) In the case of non-centralized administrative offsets, the FDIC
first learns of the existence of a debt due when there would be
insufficient time to afford the debtor due process under these
procedures before the paying agency makes payment to the debtor; in
such cases, the Director shall give the debtor notice and an
opportunity for review as soon as practical and shall refund any money
ultimately found not to be due to the U.S. Government.
{{12-31-07 p.2238.05}}
[Codified to 12 C.F.R. § 313.24]
§ 313.25 Debtor's rights.
Unless the procedures described in § 313.23 are used, prior to
collecting any claim by administrative offset or referring such claim
to another agency for collection through administrative offset, the
Director shall provide the debtor with the following:
(a) Written notification of the nature and amount of the claim, the
intention of the Director to collect the claim through administrative
offset, and a statement of the rights of the debtor under this
paragraph;
(b) An opportunity to inspect and copy the records of the FDIC with
respect to the claim, unless such records are exempt from disclosure;
(c) An opportunity to have the FDIC's determination of
indebtedness reviewed by the Director:
(1) Any request by the debtor for such review shall be in writing
and shall be submitted to the FDIC within 30 calendar days of the date
of the notice of the offset. The Director may waive the time limit for
requesting review for good cause shown by the debtor;
(2) Upon acceptance of a request for review by the debtor, the
FDIC shall provide the debtor with a reasonable opportunity for an oral
hearing when the determination turns on an issue of credibility or
veracity, or the Director determines that the question of the
indebtedness cannot be resolved by review of the documentary evidence
alone. Unless otherwise required by law, an oral hearing under this
section is not required to be a formal evidentiary hearing, although
the Director shall document all significant matters discussed at the
hearing. In cases where an oral hearing is not required by this
section, the Director shall make his determination based on a
documentary hearing consisting of a review of the written record; and
(d) An opportunity to enter into a written agreement for the
voluntary repayment of the amount of the claim at the discretion of the
Director.
[Codified to 12 C.F.R. § 313.25]
§ 313.26 Interest.
Pursuant to 31 U.S.C. 3717, the FDIC shall assess interest,
penalties and administrative costs on debts owed to the United States.
The FDIC is authorized to assess interest and related charges on debts
that are not subject to 31 U.S.C. 3717 to the extent authorized under
the common law or other applicable statutory authority.
[Codified to 12 C.F.R. § 313.26]
§ 313.27 Refunds.
Amounts recovered by administrative offset but later found not to be
owed to the Government shall be promptly refunded. Unless required by
law or contract, such refunds shall not bear interest.
[Codified to 12 C.F.R. § 313.27]
§ 313.28 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 administrative offset.
[Codified to 12 C.F.R. § 313.28]
§ 313.29 Requests for offset to other federal agencies.
The Director may request that a debt owed to the FDIC be
administratively offset against funds due and payable to a debtor by
another federal agency. In requesting administrative
{{12-31-07 p.2238.06}}offset, the FDIC, as the
creditor agency, will certify in writing to the federal agency holding
funds payable to the debtor:
(a) That the debtor owes the debt;
(b) The amount and basis of the debt; and
(c) That the FDIC has complied with the requirements of its own
administrative offset regulations and the applicable provisions of 31
U.S.C. 3716 with respect to providing the debtor with due process,
unless otherwise provided.
[Codified to 12 C.F.R. § 313.29]
§ 313.30 Requests for offset from other federal agencies.
Any federal agency may request that funds due and payable to its
debtor by the FDIC be administratively offset by the FDIC in order to
collect a debt owed to such agency by the debtor. The FDIC shall
initiate the requested offset only upon:
(a) Receipt of written certification from the creditor agency
stating:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That the agency has complied with its own administrative
offset regulations and with the applicable provisions of 31 CFR 901.3,
including providing any required hearing or review.
(b) A determination by the creditor agency that collection by
offset against funds payable by the FDIC would be in the best interest
of the United States and that such offset would not otherwise be
contrary to law.
[Codified to 12 C.F.R. § 313.30]
§§ 313.31--313.39 [Reserved]
Subpart C Salary Offset
§ 313.40 Scope.
These salary offset regulations are issued in compliance with 5
U.S.C. 5514 and 5 CFR part 550, subpart K, and apply to the collection
of debts owed by employees of the FDIC or other federal agencies. These
salary offset procedures do not apply where an employee consents to the
recovery of a debt from his current pay account. These procedures do
not apply to debts arising under the Internal Revenue Code, the tariff
laws of the United States or to any case where collection of a debt by
salary offset is explicitly provided for or prohibited by another
statute (e.g., travel advances under 5 U.S.C. 5705 and employee
training expenses under 5 U.S.C. 4108). These procedures do not
preclude an employee from requesting waiver of an erroneous payment
under 5 U.S.C. 5584, or in any way questioning the amount or validity
of a debt, in the manner specified by law or these agency regulations.
This section also does not preclude an employee from requesting waiver
of the collection of a debt under any other applicable statutory
authority. When possible, salary offset through centralized
administrative offset procedures should be attempted before seeking
salary offset from a paying agency different than the creditor agency.
[Codified to 12 C.F.R. § 313.40]
§ 313.41 Notice requirement where FDIC is creditor agency.
Where the FDIC seeks salary offset under 5 U.S.C. 5514 as the
creditor agency, the FDIC shall first provide the employee with a
written Notice of Intent to Offset at least 30 calendar days before
salary offset is to commence. The Notice of Intent to Offset shall
include the following information and statements:
(a) That the Director has determined that a debt is owed to the
FDIC and intends to collect the debt by means of deduction from the
employee's current disposable pay account until the debt and all
accumulated interest is paid in full or otherwise
resolved;
{{8-30-02 p.2238.07}}
(b) The amount of the debt and the factual basis for the debt;
(c) A salary offset schedule stating the frequency and amount of
each deduction, stated as a fixed dollar amount or percentage of
disposable pay (not to exceed 15%);
(d) That in lieu of salary offset, the employee may propose a
voluntary repayment plan to satisfy the debt on terms acceptable to the
FDIC, which must be documented in writing, signed by the employee and
the Director or the Director's designee, and documented in the FDIC's
files;
(e) The FDIC's policy concerning interest, penalties, and
administrative costs, and a statement that such assessments must be
made, unless excused in accordance with the FCCS;
(f) That the employee has the right to inspect and copy FDIC
records not exempt from disclosure relating to the debt claimed, or to
receive copies of such records if the employee or the employee's
representative is unable personally to inspect the records, due to
geographical or other constraints:
(1) That such requests be made in writing, and identify by name
and address the Director or other designated individual to whom the
request should be sent; and
(2) That upon receipt of such a request, the Director or the
Director's designee shall notify the employee of the time and location
where the records may be inspected and copied;
(g) That the employee has a right to request a hearing regarding
the existence and amount of the debt claimed or the salary offset
schedule proposed by the FDIC, provided that the employee files a
request for such a hearing with the FDIC in accordance with § 313.42
that such a hearing will be conducted by an impartial official who is
an administrative law judge or other hearing official not under the
supervision or control of the Board;
(h) The procedure and deadline for requesting a hearing, including
the name, address, and telephone number of the Director or other
designated individual to whom a request for hearing must be sent;
(i) That a request for hearing must be received by the FDIC on or
before the 30th calendar day following receipt of the Notice of Intent,
and that filing of a request for hearing will stay the collection
proceedings;
(j) That the FDIC will initiate salary offset procedures not less
than 30 days from the date of the employee's receipt of the Notice of
Intent to Offset, unless the employee files a timely request for a
hearing;
(k) That if a hearing is held, the administrative law judge or
other hearing official will issue a decision at the earliest practical
date, but not later than 60 days after the filing of the request for
the hearing, unless the employee requests a delay in the proceedings
which is granted by the hearing official;
(l) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(1) Disciplinary procedures appropriate under 5 U.S.C. chapter
75, 5 CFR part 752, or any other applicable statutes or regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729 through
3731, or under any other applicable statutory authority; or
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002
or under any other applicable statutory authority;
(m) That the employee also has the right to request waiver of
overpayment pursuant to 5 U.S.C. 5584, and may exercise any other
rights and remedies available under statutes or regulations governing
the program for which the collection is being made; and
(n) That amounts paid on or deducted from debts that are later
waived or found not to be owed to the Untied States will be promptly
refunded to the employee, unless there are applicable contractual or
statutory provisions to the contrary.
[Codified to 12 C.F.R. § 313.41]
{{8-30-02 p.2238.08}}
§ 313.42 Procedures to request a hearing.
(a) To request a hearing, an employee must send a written request
to the Director. The request must be received by the Director within 30
calendar days after the employee's receipt of the Notice of Intent.
(b) The request must be signed by the employee and must fully
identify and explain with reasonable specificity all the facts,
evidence, and witnesses, if any, that the employee believes support his
or her position. The request for hearing must state whether the
employee is requesting an oral or documentary hearing. If an oral
hearing is requested, the request shall explain why the matter cannot
be resolved by a review of documentary evidence alone.
[Codified to 12 C.F.R. § 313.42]
§ 313.43 Failure to timely submit request for hearing.
If the Director does not receive an employee's request for hearing
within the 30-day period set forth in § 313.42(a), the employee shall
not be entitled to a hearing. However, the Director may accept an
untimely request for hearing if the employee can show that the delay
was the result of circumstances beyond his or her control or that he or
she failed to receive actual notice of the filing deadline.
[Codified to 12 C.F.R. § 313.43]
§ 313.44 Procedure for hearing.
(a) Obtaining the services of a hearing official. When
the FDIC is the creditor agency and the debtor is an FDIC employee, the
FDIC shall designate an administrative law judge or contact any agent
of another agency designated in appendix A to 5 CFR part 581 to arrange
for a hearing official. When the FDIC is the creditor agency and the
debtor is not an FDIC employee (i.e., the debtor is employed
by another federal agency, also known as the paying agency), and the
FDIC cannot provide a prompt and appropriate hearing before an
administrative law judge or a hearing official furnished pursuant to a
lawful arrangement, the FDIC may contact an agent of the paying agency
designated in appendix A to 5 CFR part 581 to arrange for a hearing
official. The paying agency must cooperate with the FDIC to provide a
hearing official, as required by the FCCS.
(b) Notice and format of hearing.
(1) Notice. The hearing official shall determine whether
the hearing shall be oral or documentary and shall notify the employee
of the form of the hearing. If the hearing will be oral, the notice
shall set forth the date, time, and location of the hearing, which must
be held within 30 calendar days after the request is received, unless
the employee requests that the hearing be delayed. If the hearing will
be documentary, the employee shall be notified to submit evidence and
written arguments in support of his or her case to the hearing official
within 30 calendar days.
(2) Oral hearing. The hearing official may grant a
request for an oral hearing if he or she determines that the issues
raised by the employee cannot be resolved by review of documentary
evidence alone (e.g., where credibility or veracity are at
issue). An oral hearing is not required to be an adversarial
adjudication, and the hearing official is not required to apply rules
of evidence. Witnesses who testify in oral hearings shall do so under
oath or affirmation. Oral hearings may take the form of, but are not
limited to:
(i) Informal conferences with the hearing official in which the
employee and agency representative are given full opportunity to
represent evidence, witnesses, and argument;
(ii) Informal meetings in which the hearing examiner interviews
the employee; or
(iii) Formal written submissions followed by an opportunity for
oral presentation.
(3) Documentary hearing. If the hearing official
determines that an oral hearing is not necessary, he or she shall
decide the issues raised by the employee based upon a review of the
written record.
{{12-31-07 p.2238.09}}
(4) Record. The hearing official shall maintain a
summary record of any hearing conducted under this section.
(c) Rescheduling of the hearing date. The hearing
official shall reschedule a hearing if requested to do so by both
parties, who shall be given reasonable notice of the time and place of
this new hearing.
(d) Failure to appear. In the absence of good cause, an
employee who fails to appear at a hearing shall be deemed, for the
purpose of this subpart, to admit the existence and amount of the debt
as described in the Notice of Intent. If the representative of the
creditor agency fails to appear, the hearing official shall proceed
with the hearing as scheduled, and issue a decision based upon the oral
testimony presented and the documentation submitted by both parties.
(e) Date of decision. The hearing official shall issue a
written decision based upon the evidence and information developed at
the hearing, as soon as practicable after the hearing, but not later
than 60 calendar days after the date on which the request for hearing
was received by the FDIC, unless the hearing was delayed at the request
of the employee. In the event of such a delay, the 60-day decision
period shall be extended by the number of days by which the hearing was
postponed. The decision of the hearing official shall be final.
(f) Content of decision. The written decision shall
include:
(1) A summary of the facts concerning the origin, nature, and
amount of the debt;
(2) The hearing official's findings, analysis, and conclusions;
and
(3) The terms of the repayment schedule, if applicable.
(g) Official certification of debt. The hearing
official's decision shall constitute an official certification
regarding the existence and amount of the debt for purposes of
executing salary offset under 5 U.S.C. 5514. Where the FDIC is the
creditor agency but not the current paying agency, the FDIC may make a
certification regarding the existence and amount of the debt owed to
the FDIC, based on the hearing official's certification. The FDIC may
make this certification to: the Secretary of the Treasury so that
Treasury may offset the employee's current pay account by means of
centralized administrative offset (5 CFR 550.1108); or to the current
paying agency (5 CFR 550.1109). If the hearing official determines that
a debt may not be collected through salary offset but the FDIC as the
creditor agency determines that the debt is still valid, the FDIC may
seek collection of the debt through other means, including
administrative offset of other federal payments or litigation.
[Codified to 12 C.F.R. § 313.44]
§ 313.45 Certification of debt by FDIC as creditor agency.
The Director may also issue a certification of the debt where there
has not been a hearing, if the employee has admitted the debt, or
failed to contest the existence and amount of the debt in a timely
manner (e.g., by failing to request a hearing). The
certification shall be in writing and shall state:
(a) The amount and basis of the debt owed by the employer;
(b) The date the FDIC's right to collect the debt first accrued;
(c) That the FDIC's debt collection regulations have been approved
by OPM pursuant to 5 CFR part 550, subpart K;
(d) If the collection is to be made by lump-sum payment, the amount
and date such payment will be collected;
(e) If the collection is to be made in installments through salary
offset, the number of installments to be collected, the amount of each
installment, and the date of the first installment, if a date other
than the next officially established pay period; and
(f) The date the employee was notified of the debt, the action(s)
taken pursuant to the FDIC's regulations, and the dates such actions
were taken.
[Codified to 12 C.F.R. § 313.45]
{{12-31-07 p.2238.10}}
§ 313.46 Notice of salary offset where FDIC is the paying
agency.
(a) Upon issuance of a proper certification by the Director for
debts owed to the FDIC, or upon receipt of a proper certification from
a creditor agency, the Director shall send the employee a written
notice of salary offset. Such notice shall advise the employee:
(1) That certification has been issued by the Director or
received from another creditor agency;
(2) Of the amount of the debt and of the deductions to be made;
and
(3) Of the initiation of salary offset at the next officially
established pay interval or as otherwise provided for in the
certification.
(b) Where appropriate, the Director shall provide a copy of the
notice to the creditor agency and advise such agency of the dollar
amount to be offset and the pay period when the offset will begin.
[Codified to 12 C.F.R. § 313.46]
§ 313.47 Voluntary repayment agreements as alternative to
salary offset where the FDIC is the creditor agency.
(a) In response to a Notice of Intent, an employee may propose to
voluntarily repay the debt through scheduled voluntary payments, in
lieu of salary offset. An employee who wishes to repay a debt in this
manner shall submit to the Director a written agreement proposing a
repayment schedule. This proposal must be received by the Director
within 30 calendar days after receipt of the Notice of Intent.
(b) The Director shall notify the employee whether the employee's
proposed voluntary repayment agreement is acceptable. It is within the
discretion of the Director whether to except or reject the debtor's
proposal, or whether to propose to the debtor a modification of the
proposed repayment agreement:
(1) If the Director decides that the proposed repayment agreement
is unacceptable, he or she shall notify the employee and the employee
shall have 30 calendar days from the date he or she received notice of
the decision in which to file a request for a hearing on the proposed
repayment agreement, as provided in § 313.42; or
(2) If the Director decides that the proposed repayment agreement
is acceptable or the debtor agrees to a modification proposed by the
Director, the agreement shall be put in writing and signed by both the
employee and the Director.
[Codified to 12 C.F.R. § 313.47]
§ 313.48 Special review of repayment agreement or salary offset
due to changed circumstances.
(a) An employee subject to a voluntary repayment agreement or
salary offset payable to the FDIC as creditor agency may request a
special review by the Director of the amount of the salary offset or
voluntary repayment, based on materially changed circumstances,
including, but not limited to, catastrophic illness, divorce, death, or
disability. A request for special review may be made at any time.
(b) In support of a request for special review, the employee shall
submit to the Director a detailed statement and supporting documents
for the employee, his or her spouse, and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Monthly expenses for food, housing, clothing, and
transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
{{12-31-07 p.2238.11}}
(c) The employee shall also file an alternative proposed offset or
payment schedule and a statement, with supporting documents, showing
why the current salary offset or payments result in extreme financial
hardship to the employee.
(d) The Director shall evaluate the statement and supporting
documents and determine whether the original salary offset or repayment
schedule imposes extreme financial hardship on the employee, for
example, by preventing the employee from meeting essential subsistence
expenses such as food, housing, clothing, transportation, and medical
care. The Director shall notify the employee in writing within 30
calendar days of his or her determination.
(e) If the special review results in a revised salary offset or
repayment schedule, the Director shall provide a new certification to
the paying agency.
[Codified to 12 C.F.R. § 313.48]
§ 313.49 Coordinating salary offset with other agencies.
(a) Responsibility of the FDIC as the creditor agency.
Upon completion of the procedures established in § 313.40
through § 313.45, the Director shall take the following actions:
(1) Submit a debt claim to the paying agency, containing the
information described in paragraphs (a)(2) and (a)(3) of this section,
together with the certification of debt or an installment agreement (or
other instruction regarding the payment schedule, if applicable).
(2) If the collection must be made in installments, inform the
paying agency of the amount or percentage of disposable pay to be
collected in each installment. The Director may also inform the paying
agency of the commencement date and number of installments to be paid,
if a date other than the next officially established pay period is
required.
(3) Unless the employee has consented to the salary offset in
writing or has signed a statement acknowledging receipt of the required
procedures and the written consent or statement is forwarded to the
paying agency, the Director must also advise the paying agency of the
actions the FDIC has taken under 5 U.S.C. 5514 and state the dates such
action was taken.
(4) If the employee is in the process of separating from
employment, the Director shall submit the debt claim to the employee's
paying agency for collection by lump-sum deduction from the employee's
final check. The paying agency shall certify the total amount of its
collection and furnish a copy of the certification to the FDIC and to
the employee.
(5) If the employee is already separated and all payments due
from his or her former paying agency have been paid, the Director may,
unless otherwise prohibited, request that money due and payable to the
employee from the federal government, including payments from the Civil
Service Retirement and Disability Fund (5 CFR 831.1801), be
administratively offset to collect the debt.
(6) In the event an employee transfers to another paying agency,
the Director shall not repeat the procedures described in § 313.40
through § 313.45 in order to resume collecting the debt. Instead, the
FDIC shall review the debt upon receiving the former paying agency's
notice of the employee's transfer and shall ensure that collection is
resumed by the new paying agency. The FDIC must submit a properly
certified claim to the new paying agency before collection can be
resumed.
(b) Responsibility of the FDIC as the paying agency.
(1) Complete claim. When the FDIC receives a properly
certified claim from a creditor agency, the employee shall be given
written notice of the certification, the date salary offset will begin,
and the amount of the periodic deductions. The FDIC shall schedule
deductions to begin at the next officially established pay interval or
as otherwise provided for in the certification.
(2) Incomplete claim. When the FDIC receives an
incomplete certification of debt from a creditor agency, the FDIC shall
return the debt claim with notice that procedures under 5 U.S.C. 5514
and 5 CFR 550.1104 must be followed and that a properly certified debt
claim must be received before the action will be taken to collect from
the employee's current pay account.
{{12-31-07 p.2238.12}}
(3) Review. The FDIC is not authorized to review the
merits of the creditor agency's determination with respect to the
amount or validity of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to
another agency. If, after the creditor agency has submitted the
debt claim to the FDIC, the employee transfers to a different paying
agency before the debt is collected in full, the FDIC must certify the
total amount collected on the debt. One copy of the certification shall
be furnished to the employee, and one copy shall be sent to the
creditor agency along with notice of the employee's transfer. If the
FDIC is aware that the employee is entitled to payments from the Civil
Service Retirement and Disability Fund, or other similar payments, it
must provide written notification to the agency responsible for making
such payments that the debtor owes a debt (including the amount) and
that the requirements set forth herein and in the OPM's regulation (5
CFR part 550, subpart K) have been fully met.
[Codified to 12 C.F.R. § 313.49]
§ 313.50 Interest, penalties, and administrative costs.
Where the FDIC is the creditor agency, it shall assess interest,
penalties, and administrative costs pursuant to 31 U.S.C. 3717 and 31
CFR parts 900 through 904.
[Codified to 12 C.F.R. § 313.50]
§ 313.51 Refunds.
(a) Where the FDIC is the creditor agency, it shall promptly refund
any amount deducted under the authority of 5 U.S.C. 5514 when the debt
is compromised or otherwise found not to be owing to the United States,
or when an administrative or judicial order directs the FDIC to make a
refund.
(b) Unless required by law or contract, such refunds shall not bear
interest.
[Codified to 12 C.F.R. § 313.51]
§ 313.52 Request form a creditor agency for services of a
hearing official.
(a) The FDIC may provide a hearing official upon request of the
creditor agency when the debtor is employed by the FDIC and the
creditor agency cannot provide a prompt and appropriate hearing before
a hearing official furnished pursuant to another lawful arrangement.
(b) The FDIC may provide a hearing official upon request of a
creditor agency when the debtor works for the creditor agency and that
agency cannot arrange for a hearing official.
(c) The Director shall arrange for qualified personnel to serve as
hearing officials.
(d) Services rendered under paragraph (a) of this section shall be
provided on a fully reimbursable basis pursuant to 31 U.S.C. 1535.
[Codified to 12 C.F.R. § 313.52]
§ 313.53 Non-waiver of rights by payments.
A debtor's payment, whether voluntary or involuntary, of all or any
portion of a debt being collected pursuant to this section shall not be
construed as a waiver of any rights that the debtor may have under any
statute, regulation, or contract except as otherwise provided by law or
contract.
[Codified to 12 C.F.R. § 313.53]
§ 313.54 Exception to due process procedures.
(a) The procedures set forth in this subpart shall not apply to
routine intra-agency salary adjustments of pay, including the
following:
{{12-31-07 p.2238.13}}
(1) Any adjustment to pay arising out of an employee's election
of coverage or a change in coverage under a federal benefits program
requiring periodic deductions from pay, if the amount to be recovered
was accumulated over four pay periods or less;
(2) A routine adjustment of pay that is made to correct an
overpayment attributable to clerical or administrative errors or delays
in processing pay documents, if the overpayment occurred within the
four pay periods preceding the adjustment and, at the time of such
adjustment or as soon thereafter as is practical, the individual is
provided written notice of the nature and amount of the adjustment and
the point of contact for contesting such adjustment; or
(3) Any adjustment to collect a debt amount to $50 or less, if,
at the time of such adjustment, or as soon thereafter as is practical,
the individual is provided written notice of the nature and amount of
the adjustment and the point of contact for contesting such adjustment.
(b) The procedure for notice to the employee and collection of such
adjustments is set forth in § 313.55.
[Codified to 12 C.F.R. § 313.54]
§ 313.55 Salary adjustments.
Any negative adjustment to pay arising out of an employee's
election of coverage, or a change in coverage, under a federal benefits
program requiring periodic deductions from pay shall not be considered
collection of a "debt" for the purposes of this section if the
amount to be recovered was accumulated over four pay periods or less.
In such cases, the FDIC shall not apply this subpart C, but will
provide a clear and concise statement in the employee's earnings
statement advising the employee of the previous overpayment at the time
the adjustment is made.
[Codified to 12 C.F.R. § 313.55]
§ 313.56--313.79 [Reserved]
Subpart D Administrative Wage
Garnishment
§ 313.80 Scope and purpose.
(a) These administrative wage garnishment regulations are issued in
compliance with 31 U.S.C. 3720D and 31 CFR 285.11(f). The subpart
provides procedures for the FDIC to collect money from a debtor's
disposable pay by means of administrative wage garnishment. The receipt
of payments pursuant to this subpart does not preclude the FDIC from
pursuing other debt collection remedies, including the offset of
federal payments. The FDIC may pursue such debt collection remedies
separately or in conjunction with administrative wage garnishment. This
subpart does not apply to the collection of delinquent debts from the
wages of federal employees from their federal employment. Federal pay
is subject to the federal salary offset procedures set forth in 5
U.S.C. 5514 and other applicable laws.
[Codified to 12 C.F.R. § 313.80]
§ 313.81 Notice.
At least 30 days before the initiation of garnishment proceedings,
the Director will send, by first class mail to the debtor's last known
address, a written notice informing the debtor of:
(a) The nature and amount of the debt;
(b) The FDIC's intention to initiate proceedings to collect the
debt through deductions from the debtor's pay until the debt and all
accumulated interest penalties and administrative costs are paid in
full;
(c) An explanation of the debtor's rights as set forth in
§ 313.82(c); and
{{12-31-07 p.2238.14}}
(d) The time frame within which the debtor may exercise these
rights. The FDIC shall retain a stamped copy of the notice indicating
the date the notice was mailed.
[Codified to 12 C.F.R. § 313.81]
§ 313.82 Debtor's rights.
The FDIC shall afford the debtor the opportunity:
(a) To inspect and copy records related to the debt;
(b) To enter into a written repayment agreement with the FDIC,
under terms agreeable to the FDIC; and
(c) To the extent that a debt owed has not been established by
judicial or administrative order, to request a hearing concerning the
existence or amount of the debt or the terms of the repayment schedule.
With respect to debts established by a judicial or administrative
order, a debtor may request a hearing concerning the payment or other
discharge of the debt. The debtor is not entitled to a hearing
concerning the terms of the proposed repayment schedule if these terms
have been established by written agreement.
[Codified to 12 C.F.R. § 313.82]
§ 313.83 Form of hearing.
(a) If the debtor submits a timely written request for a hearing as
provided in § 313.82(c), the FDIC will afford the debtor a hearing,
which at the FDIC's option may be oral or written. The FDIC will
provide the debtor with a reasonable opportunity for an oral hearing
when the Director determines that the issues in dispute cannot be
resolved by review of the documentary evidence, for example, when the
validity of the claim turns on the issue of credibility or veracity.
(b) If the FDIC determines that an oral hearing is appropriate, the
time and location of the hearing shall be established by the FDIC. An
oral hearing may, at the debtor's option, be conducted either in
person or by telephone conference. All travel expenses incurred by the
debtor in connection with an in-person hearing will be borne by the
debtor. All telephonic charges incurred during the hearing will be the
responsibility of the agency.
(c) In cases when it is determined that an oral hearing is not
required by this section, the FDIC will accord the debtor a "paper
hearing," that is, the FDIC will decide the issues in dispute based
upon a review of the written record.
[Codified to 12 C.F.R. § 313.83]
§ 313.84 Effect of timely request.
If the FDIC receives a debtor's written request for hearing within
15 business days of the date the FDIC mailed its notice of intent to
seek garnishment, the FDIC shall not issue a withholding order until
the debtor has been provided the requested hearing, and a decision in
accordance with § 313.88 and § 313.89 has been rendered.
[Codified to 12 C.F.R. § 313.84]
§ 313.85 Failure to timely request a hearing.
If the FDIC receives a debtor's written request for hearing after
15 business days of the date the FDIC mailed its notice of intent to
seek garnishment, the FDIC shall provide a hearing to the debtor.
However, the FDIC will not delay issuance of a withholding order unless
it determines that the untimely filing of the request was caused by
factors over which the debtor had no control, or the FDIC receives
information that the FDIC believes justifies a delay or cancellation of
the withholding order.
[Codified to 12 C.F.R. § 313.85]
§ 313.86 Hearing official.
A hearing official may be any qualified individual, as determined by
the FDIC, including an administrative law judge.
[Codified to 12 C.F.R. § 313.86]
{{12-31-07 p.2238.15}}
§ 313.87 Procedure.
After the debtor requests a hearing, the hearing official shall
notify the debtor of:
(a) The date and time of a telephonic hearing;
(b) The, date, time, and location of an in-person oral hearing; or
(c) The deadline for the submission of evidence for a written
hearing.
[Codified to 12 C.F.R. § 313.87]
§ 313.88 Format of hearing.
The FDIC will have the burden of proof to establish the existence or
amount of the debt. Thereafter, if the debtor disputes the existence or
amount of the debt, the debtor must prove by a preponderance of the
evidence that no debt exists, or that the amount of the debt is
incorrect. In addition, the debtor may present evidence that the terms
of the repayment schedule are unlawful, would cause a financial
hardship to the debtor, or that collection of the debt may not be
pursued due to operation of law. The hearing official shall maintain a
record of any hearing held under this section. Hearings are not
required to be formal, and evidence may be offered without regard to
formal rules of evidence. Witnesses who testify in oral hearings shall
do so under oath or affirmation.
[Codified to 12 C.F.R. § 313.88]
§ 313.89 Date of decision.
The hearing official shall issue a written opinion stating his or
her decision as soon as practicable, but not later than sixty (60) days
after the date on which the request for such hearing was received by
the FDIC. If the FDIC is unable to provide the debtor with a hearing
and decision within sixty (60) days after the receipt of the request
for such hearing:
(a) The FDIC may not issue a withholding order until the hearing is
held and a decision rendered; or
(b) If the FDIC had previously issued a withholding order to the
debtor's employer, the withholding order will be suspended beginning
on the 61st day after the date the FDIC received the hearing request
and continuing until a hearing is held and a decision is rendered.
[Codified to 12 C.F.R. § 313.89]
§ 313.90 Content of decision.
The written decision shall include:
(a) A summary of the facts presented;
(b) The hearing official's findings, analysis and conclusions; and
(c) The terms of any repayment schedule, if applicable.
[Codified to 12 C.F.R. § 313.90]
§ 313.91 Finality of agency action.
Unless the FDIC on its own initiative orders review of a decision by
a hearing official pursuant to 17 CFR 201.431(c), a decision by a
hearing official shall become the final decision of the FDIC for the
purpose of judicial review under the Administrative Procedure Act.
[Codified to 12 C.F.R. § 313.91]
§ 313.92 Failure to appear.
In absence of good cause shown, a debtor who fails to appear at a
scheduled hearing will be deemed as not having timely filed a request
for a hearing.
[Codified to 12 C.F.R. § 313.92]
{{12-31-07 p.2238.16}}
§ 313.93 Wage garnishment order.
(a) Unless the FDIC receives information that it believes justifies
a delay or cancellation of the withholding order, the FDIC will send by
first class mail a withholding order to the debtor's employer within
30 days after the debtor fails to make a timely request for a hearing
(i.e., within 15 business days after the mailing of the notice of the
FDIC's intent to seek garnishment) or, if a timely request for a
hearing is made by the debtor, within 30 days after a decision to issue
a withholding order becomes final.
(b) The withholding order sent to the employer will be in the form
prescribed by the Secretary of the Treasury, on the FDIC's letterhead,
and signed by the head of the agency or delegate. The order will
contain all information necessary for the employer to comply with the
withholding order, including the debtor's name, address, and social
security number, as well as instructions for withholding and
information as to where payments should be sent.
(c) The FDIC will keep a stamped copy of the order indicating the
date it was mailed.
[Codified to 12 C.F.R. § 313.93]
§ 313.94 Certification by employer.
Along with the withholding order, the FDIC will send to the employer
a certification in a form prescribed by the Secretary of the Treasury.
The employer shall complete and return the certification to the FDIC
within the time frame prescribed in the instructions to the form. The
certification will address matters such as information about the
debtor's employment status and disposable pay available for
withholding.
§ 313.95 Amounts withheld.
(a) Upon receipt of the garnishment order issued under this
section, the employer shall deduct from all disposable pay paid to the
debtor during each pay period the amount of garnishment described in
paragraphs (b) through (d) of this section.
(b) Subject to the provisions of paragraphs (c) and (d) of this
section, the amount of garnishment shall be the lesser of:
(1) The amount indicated on the garnishment order up to 15% of
the debtor's disposable pay; or
(2) The amount set forth in 15
U.S.C. 1673(a)(2). The amount set forth at 15 U.S.C. 1673(a)(2)
is the amount by which the debtor's disposable pay exceeds an amount
equivalent to thirty times the minimum wage. See
29 CFR 870.10.
(c) When a debtor's pay is subject to withholding orders with
priority, the following shall apply:
(1) Unless otherwise provided by federal law, withholding orders
issued under this section shall be paid in the amounts set forth under
paragraph (b) of this section and shall have priority over other
withholding orders which are served later in time. However, withholding
orders for family support shall have priority over withholding orders
issued under this section.
(2) If amounts are being withheld from a debtor's pay pursuant
to a withholding order served on an employer before a withholding order
issued pursuant to this section, or if a withholding order for family
support is served on an employer at any time, the amounts withheld
pursuant to the withholding order issued under this section shall be
the lesser of:
(i) The amount calculated under paragraph (b) of this section; or
(ii) An amount equal to 25% of the debtor's disposable pay less
the amount(s) withheld under the withholding order(s) with priority.
(3) If a debtor owes more than one debt to the FDIC, the FDIC may
issue multiple withholding orders. The total amount garnished from the
debtor's pay for such orders will not exceed the amount set forth in
paragraph (b) of this section.
{{12-31-07 p.2238.17}}
(d) An amount greater than that set forth in paragraphs (b) and (c)
of this section may be withheld upon the written consent of the debtor.
(e) The employer shall promptly pay to the FDIC all amounts
withheld in accordance with the withholding order issued pursuant to
this section.
(f) An employer shall not be required to vary its normal pay and
disbursement cycles in order to comply with the withholding order.
(g) Any assignment or allotment by the employee of the employee's
earnings shall be void to the extent it interferes with or prohibits
execution of the withholding order under this section, except for any
assignment or allotment made pursuant to a family support judgment or
order.
(h) The employer shall withhold the appropriate amount from the
debtor's wages for each pay period until the employer receives
notification from the FDIC to discontinue wage withholding. The
garnishment order shall indicate a reasonable period of time within
which the employer is required to commence wage withholding.
[Codified to 12 C.F.R. § 313.95]
§ 313.96 Exclusions from garnishment.
The FDIC will not garnish the wages of a debtor it knows has been
involuntarily separated from employment until the debtor has been
re-employed continuously for at least 12 months. The debtor has the
burden of informing the FDIC of the circumstances surrounding an
involuntary separation from employment.
[Codified to 12 C.F.R. § 313.96]
§ 313.97 Financial hardship.
(a) A debtor whose wages are subject to a wage withholding order
under this section, may, at any time, request a review by the FDIC of
the amount garnished, based on materially changed circumstances such as
disability, divorce, or catastrophic illness which result in financial
hardship.
(b) A debtor requesting a review under this section shall submit
the basis for claiming that the current amount of garnishment results
in a financial hardship to the debtor, along with supporting
documentation.
(c) If a financial hardship is found, the FDIC will downwardly
adjust, by an amount and for a period of time agreeable to the FDIC,
the amount garnished to reflect the debtor's financial condition. The
FDIC will notify the employer of any adjustments to the amounts to be
withheld.
[Codified to 12 C.F.R. § 313.97]
§ 313.98 Ending garnishment.
(a) Once the FDIC has fully recovered the amounts owed by the
debtor, including interest, penalties, and administrative costs
consistent with the FCCS, the FDIC will send the debtor's employer
notification to discontinue wage withholding.
(b) At least annually, the FDIC will review its debtors' accounts
to ensure that garnishment has been terminated for accounts that have
been paid in full.
[Codified to 12 C.F.R. § 313.98]
§ 313.99 Prohibited actions by employer.
The DCIA prohibits an employer from discharging, refusing to employ,
or taking disciplinary action against the debtor due to the issuance of
a withholding order under this subpart.
[Codified to 12 C.F.R. § 313.99]
{{12-31-07 p.2238.18}}
§ 313.100 Refunds.
(a) If a hearing official determines that a debt is not legally due
and owing to the United States, the FDIC shall promptly refund any
amount collected by means of administrative wage garnishment.
(b) Unless required by federal law or contract, refunds under this
section shall not bear interest.
[Codified to 12 C.F.R. § 313.100]
§ 313.101 Right of action.
The FDIC may sue any employer for any amount that the employer fails
to withhold from wages owed and payable to its employee in accordance
with this subpart. However, a suit will not be filed before the
termination of the collection action involving a particular debtor,
unless earlier filing is necessary to avoid expiration of any
applicable statute of limitations. For purposes of this subpart,
"termination of the collection action" occurs when the agency has
terminated collection action in accordance with the FCCS (31 CFR 903.1
through 903.5) or other applicable standards. In any event, termination
of the collection action will have been deemed to occur if the FDIC has
not received any payments to satisfy the debt from the particular
debtor whose wages were subject to garnishment, in whole or in part,
for a period of one (1) year.
[Codified to 12 C.F.R.
§ 313.101]
§ 313.102--313.119 [Reserved]
Subpart E Tax Refund Offset
§ 313.120 Scope.
The provisions of 26 U.S.C. 6402(d) and 31 U.S.C. 3720A authorize
the Secretary of the Treasury to offset a delinquent debt owed to the
United States Government from the tax refund due a taxpayer when other
collection efforts have failed to recover the amount due. In addition,
the FDIC is authorized to collect debts by means of administrative
offset under 31 U.S.C. 3716 and, as part of the debt collection
process, to notify the Financial Management Service (FMS), a bureau of
the Department of the Treasury, of the amount of such debt for
collection by tax refund offset.
[Codified to 12 C.F.R. § 313.120]
§ 313.121 Definitions.
For purposes of this subpart E:
(a) Debt or claim means an amount of money, funds or
property which has been determined by the FDIC to be due to the United
States from any person, organization, or entity, except another federal
agency.
(b) Debtor means a person who owes a debt or a claim.
The term "person" includes any individual, organization or
entity, except another federal agency.
(c) Tax refund offset means withholding or reducing a
tax refund payment by an amount necessary to satisfy a debt owed by the
payee(s) of a tax refund payment.
(d) Tax refund payment means any overpayment of federal
taxes to be refunded to the person making the overpayment after the
Internal Revenue Service (IRS) makes the appropriate credits.
[Codified to 12 C.F.R. § 313.121]
{{10-31-07 p.2238.19}}
§ 313.122 Notification of debt to FMS.
The FDIC shall notify FMS of the amount of any past due, legally
enforceable non-tax debt owed to it by a person, for the purpose of
collecting such debt by tax refund offset. Notification and referral to
FMS of such debts does not preclude FDIC's use of any other debt
collection procedures, such as wage garnishment, either separately or
in conjunction with tax refund offset.
[Codified to 12 C.F.R. § 313.122]
§ 313.123 Certification and referral of debt.
When the FDIC refers a past-due, legally enforceable debt to FMS for
tax refund offset, it will certify to FMS that:
(a) The debt is past due and legally enforceable in the amount
submitted to FMS and that the FDIC will ensure that collections are
properly credited to the debt;
(b) Except in the case of a judgment debt or as otherwise allowed
by law, the debt is referred for offset within ten years after the
FDIC's right of action accrues;
(c) The FDIC has made reasonable efforts to obtain payment of the
debt, in that it has;
(1) Submitted the debt to FMS for collection by administrative
offset and complied with the provisions of 31 U.S.C. 3716(a) and
related regulations;
(2) Notified, or has made a reasonable attempt to notify, the
debtor that the debt is past-due, and unless repaid within 60 days
after the date of this notice, will be referred to FMS for tax refund
offset;
(3) Given the debtor at least 60 days to present evidence that
all or part of the debt is not past-due or legally enforceable,
considered any evidence presented by the debtor, and determined that
the debt is past-due and legally enforceable; and
(4) Provided the debtor with an opportunity to make a written
agreement to repay the debt; and
(d) The debt is at least $25.
[Codified to 12 C.F.R. § 313.123]
§ 313.124 Pre-offset notice and consideration of evidence.
(a) For purposes of § 313.123(c)(2), the FDIC has made a
reasonable effort to notify the debtor if it uses the current address
information contained in its records related to the debt. The FDIC may,
but is not required to, obtain address information from the IRS
pursuant to 26 U.S.C. 6103(m)(2), (4), (5).
(b) For purposes of § 313.123(c)(3), if evidence presented by a
debtor is considered by an agent of the FDIC, or other entities or
persons acting on behalf of the FDIC, the debtor must be accorded at
least 30 days from the date the agent or other entity or person
determines that all or part of the debt is past-due and legally
enforceable to request review by an officer or employee of the FDIC of
any unresolved dispute. The FDIC must then notify the debtor of its
decision.
[Codified to 12 C.F.R. § 313.124]
§ 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.
[Codified to 12 C.F.R. § 313.125]
[Section 313.125 added at 71 Fed. Reg. 75661, December 18,
2006]
{{10-31-07 p.2238.20}}
§ 313.126 Referral of past-due, legally enforceable debt.
The FDIC shall submit past-due, legally enforceable debt information
for tax refund offset to FMS, as prescribed by FMS. For each debt, the
FDIC will include the following information:
(a) The name and taxpayer identification number (as defined in 26
U.S.C. 6109) of the debtor;
(b) The amount of the past-due and legally enforceable debt;
(c) The date on which the debt became past-due; and
(d) The designation of FDIC as the agency referring the debt.
[Codified to 12 C.F.R. § 313.126]
[Section 313.125 redesignated as 313.126 at 71 Fed. Reg.
75661, December 18, 2006]
§ 313.127 Correcting and updating referral.
If, after referring a past-due legally enforceable debt to FMS as
provided in § 313.125, the FDIC determines that an error has been
made with respect to the information transmitted to FMS, or if the FDIC
receives a payment or credits a payment to the account of the debtor
referred to FMS for offset, or if the debt amount is otherwise
incorrect, the FDIC shall promptly notify FMS and make the appropriate
correction of the FDIC's records. FDIC will provide certification as
required under § 313.123 for any increases to amounts owed. In the
event FMS rejects an FDIC certification for failure to comply with
§ 313.123, the FDIC may resubmit the debt with a corrected
certification.
[Codified to 12 C.F.R. § 313.127]
[Section 313.126 redesignated as 313.127 at 71 Fed. Reg.
75661, December 18, 2006]
§ 313.128 Disposition of amounts collected.
FMS will transmit amounts collected for past-due, legally
enforceable debts, less fees charged under this section, to the FDIC's
account. The FDIC will reimburse FMS and the IRS for the cost of
administering the tax refund offset program. FMS will deduct the fees
from amounts collected prior to disposition and transmit a portion of
the fees deducted to reimburse the IRS for its share of the cost of
administering the tax refund offset program. To the extent allowed by
law, the FDIC may add the offset fees to the debt.
[Codified to 12 C.F.R. § 313.128]
[Section 313.127 redesignated as 313.128 at 71 Fed. Reg. 75661,
December 18, 2006]
§§ 313.129--313.139 [Reserved]
Subpart F Civil Service Retirement and Disability Fund
Offset
§ 313.140 Future benefits.
Unless otherwise prohibited by law, the FDIC may request that a
debtor's anticipated or future benefit payments under the Civil
Service Retirement and Disability Fund (Fund) be administratively
offset in accordance with regulations at 5 CFR 831.1801 through
831.1808.
[Codified to 12 C.F.R. § 313.140]
§ 313.141 Notification to OPM.
When making a request for administrative offset under § 313.140,
the FDIC shall provide OPM with a written certification that:
(a) The debtor owes the FDIC a debt, including the amount of the
debt;
(b) The FDIC has complied with the applicable statutes,
regulations, and procedures of OPM; and
{{10-31-07 p.2238.20-A}}
(c) The FDIC has complied with the requirements of 31 CFR parts 900
through 904, including any required hearing or review.
[Codified to 12 C.F.R. § 313.141]
§ 313.142 Request for administrative offset.
The Director shall request administrative offset under § 313.140,
as soon as practical after completion of the applicable procedures in
order to help ensure that offset be initiated prior to expiration of
the applicable statute of limitations. At such time as the debtor makes
a claim for payments from the Fund, if at least a year has elasped
since the offset request was originally made, the debtor shall be
permitted to offer a satisfactory repayment plan in lieu of offset upon
establishing that changed financial circumstances would render the
offset unjust.
[Codified to 12 C.F.R. § 313.142]
{{6-30-05 p.2238.21}}
§ 313.143 Cancellation of deduction.
If the FDIC collects part or all of the debt by other means before
deductions are made or completed pursuant to § 313.140, the FDIC
shall act promptly to modify or terminate its request for such offset.
[Codified to 12 C.F.R.
§ 313.143]
§§ 313.144--313.159 [Reserved]
Subpart G Mandatory Centralized Administrative
Offset
§ 313.160 Treasury notification.
(a) In accordance with 31 U.S.C. 3716, the FDIC as a creditor
agency must notify the Secretary of the Treasury of all debts that are
delinquent (over 180 days past due), as defined in the FCCS, to enable
the Secretary to seek collection by centralized administrative offset.
This includes debts the FDIC seeks to recover from the pay account of
an employee of another agency by means of salary offset.
(b) For purposes of centralized administrative offset, a claim or
debt is not delinquent if:
(1) It is in litigation or foreclosure;
(2) It will be disposed of under an asset sale program within one
year after becoming eligible for sale;
(3) It has been referred to a private collection contractor for
collection;
(4) It has been referred to a debt collection center;
(5) It will be collected under internal offset, if such offset is
sufficient to collect the claim within three years after the date the
debt or claim is first delinquent; and
(6) It is within a specific class of claims or debts which the
Secretary of the Treasury has determined to be exempt, at the request
of an agency.
[Codified to 12 C.F.R. § 313.160]
§ 313.161 Certification of debt.
Prior to referring a delinquent debt to the Secretary of the
Treasury, the Director must have complied with the requirements of 5
U.S.C. 5514, and 5 CFR part 550, subpart K, governing salary offset,
and the FDIC regulations. The Director shall certify, in a form
acceptable to the Secretary, that:
(a) The debt is past due and legally enforceable; and
(b) The FDIC has complied with all due process requirements under
31 U.S.C. 3716 and the FDIC's administrative offset regulations.
[Codified to 12 C.F.R. § 313.161]
§ 313.162 Compliance with 31 CFR part 285.
The Director shall also comply with applicable procedures for
referring a delinquent debt for purposes of centralized offset which
are set forth at 31 CFR part 285 and the FCCS.
[Codified to 12 C.F.R. § 313.162]
§ 313.163 Notification of debts of 180 days or less.
The Director, in his discretion, may also notify the Secretary of
the Treasury of debts that have been delinquent for 180 days or less,
including debts the FDIC seeks to recover by means of salary offset.
[Codified to 12 C.F.R.
§ 313.163]
§§ 313.164--313.180 [Reserved]
[The page following this is 2239.]
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