[Federal Register Volume 72, Number 7 (Thursday, January 11, 2007)]
[Rules and Regulations]
[Pages 1283-1288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-127]


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DEPARTMENT OF THE TREASURY

Fiscal Service

31 CFR Part 285

RIN 1510-AB09


Administrative Offset Under Reciprocal Agreements With States

AGENCY: Financial Management Service, Fiscal Service, Treasury.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule describes the rules applicable to the offset 
of Federal nontax payments to collect delinquent debts owed to States 
pursuant to reciprocal agreements between the Secretary of the Treasury 
and the States. In addition to providing for the offset of Federal 
nontax payments, the reciprocal agreements will provide for the offset 
of State payments to collect delinquent, nontax Federal debts. The 
offsets described in this rule will be processed by the Treasury Offset 
Program (TOP). The Department of the Treasury's Financial Management 
Service (FMS) established TOP in order to centralize the process by 
which Federal payments are withheld or reduced (in other words, offset) 
to collect delinquent debts. This interim rule specifically applies to 
the centralized offset of Federal nontax payments by Federal disbursing 
officials to collect delinquent debts owed to States pursuant to 
reciprocal agreements. Therefore, this interim rule affects persons who 
owe delinquent debts to a State of the United States and who receive 
Federal payments. It also affects persons who owe delinquent, nontax 
Federal debts and who receive payments from States. This rule does not 
apply to collection of past-due support debts (see 31 CFR 285.1), the 
offset of Federal tax refund payments, the offset of Federal salary 
payments, or the offset of other Federal payments excluded from offset 
by law.

DATES: This rule is effective January 11, 2007. Comments must be 
received by March 12, 2007.

ADDRESSES: All comments should be addressed to Thomas Dungan, Senior 
Policy Analyst, Debt Management Services, Financial Management Service, 
Department of the Treasury, 401 14th Street, SW., Room 435B, 
Washington, DC 20227. Comments may also be submitted via the internet 
as directed on the FMS Web site at the following address: http://www.fms.treas.gov/debt. A copy of this interim rule is being made 
available for downloading from the Web site.

FOR FURTHER INFORMATION CONTACT: Thomas Dungan, Senior Policy Analyst, 
at (202) 874-6660, or Tricia Long, Senior Counsel, at (202) 874-6680.

SUPPLEMENTARY INFORMATION: 

Background

    The Debt Collection Improvement Act of 1996 (DCIA), Pub. L. 104-
134, 110 Stat. 1321-358 et seq. (April 26, 1996), authorized Federal 
disbursing officials to withhold or reduce eligible Federal payments to 
pay the payee's delinquent debt owed to the United States. See 31 
U.S.C. 3716(c). This process is known as ``administrative offset'' or 
``offset.'' The DCIA also provided that Federal payments may be offset 
to collect delinquent debts owed to States provided that the States 
enter into reciprocal agreements with the Secretary of the Treasury and 
meet

[[Page 1284]]

certain other qualifications. See 31 U.S.C. 3716(h).
    FMS, a bureau of the Department of the Treasury (Treasury), is 
responsible for the implementation of centralized administrative offset 
of Federal payments for the collection of delinquent debt. FMS has 
established TOP to meet this and other debt collection 
responsibilities. By centralizing offset through TOP, FMS has 
consolidated and simplified debt collection procedures for the Federal 
Government. TOP works as follows: Creditor agencies submit information 
about delinquent debts to FMS, which maintains the information in its 
delinquent debtor database. Payment agencies prepare and certify 
payment vouchers to FMS and disbursing officials at certain other 
Federal agencies with disbursing authority (such as the Department of 
Defense or the United States Postal Service), who then disburse 
payments. The payment vouchers contain information about the payment 
including the name and taxpayer identifying number (TIN) of the 
recipient.
    Before an eligible Federal payment is disbursed to a payee, FMS 
compares the payment information (including information from payments 
disbursed by other Federal agencies) with debtor information in FMS's 
delinquent debtor database. If the payee's name and TIN match the name 
and TIN of a debtor, the disbursing official offsets the payment, in 
whole or in part, to satisfy the debt, to the extent legally allowed.
    FMS transmits amounts collected through offset to the appropriate 
creditor agencies after deducting fees to cover the costs of operating 
the offset program, pursuant to 31 U.S.C. 3716(c)(4). If not otherwise 
prohibited by law, creditor agencies may add the fees to the debts as 
administrative costs, pursuant to 31 U.S.C. 3717(e).
    Section 3716(h) authorizes the Secretary of the Treasury to allow 
States to participate in administrative offset to collect delinquent 
State debts so long as the States meet the requirements of 31 U.S.C. 
3716(h), including entering into reciprocal agreements with the 
Secretary of the Treasury. Such reciprocal agreements shall contain any 
requirements that the Secretary considers appropriate to facilitate 
offset and prevent duplicative efforts.
    In order to determine if it is in the best interests of the United 
States and the States to fully implement reciprocal offsets under this 
section, FMS invited the States to participate in the development of a 
pilot program. Three States have chosen to work with FMS to develop and 
participate in the pilot. The purpose of the pilot is to test systems 
and procedures to facilitate offset and to evaluate whether the 
benefits of the program outweigh the costs. FMS will consider 
information gained from the operation of the pilot, in addition to 
comments received on this interim rule, before issuing a final rule.

Section Analysis

    (a) Scope. Paragraph (a) describes the scope of this rule, which 
governs the administrative offset of Federal nontax payments to collect 
delinquent debts owed to States in accordance with the requirements of 
31 U.S.C. 3716(h). This rule does not apply to the offset of Federal 
tax refund payments, because the authority for this section--31 U.S.C. 
3716--does not authorize the offset of Federal tax refunds to collect 
debts. This rule also does not apply to the offset of Federal salary 
payments. While Federal salary payments may be offset under 31 U.S.C. 
3716, there are many statutes and regulations that affect Federal 
salary offsets. FMS has chosen not to address those authorities in this 
rule. Additionally, this rule does not apply to the collection of past-
due support payments. (See 31 CFR 285.1 for rules applicable to 
administrative offset to collect past-due support).
    (b) Definitions. Paragraph (b) of this rule sets forth definitions 
applicable to this rule. Unless otherwise defined in this rule, all 
terms have the meanings set forth in section 285.5(b) of this part. As 
defined in this rule, ``administrative offset'' is used to describe the 
offset of Federal payments to collect delinquent State debts. The 
definition of ``State debt'' expressly excludes debts owed by other 
governments. FMS has determined that TOP is not the appropriate tool 
for resolving issues of indebtedness between State, local and foreign 
governments. Also, the term ``debt'' is limited by statute to exclude 
debts owed by agencies of the United States. See 31 U.S.C. 3701(c). The 
term ``State payment offset'' means the offset of State payments, 
pursuant to State law, to collect delinquent Federal nontax debts. The 
term ``reciprocal agreement'' is defined to mean a written agreement 
between FMS and a State, which will govern administrative offset to 
collect that State's debts and the offset of that State's payments to 
collect Federal debts.
    (c) General rule. Paragraph (c) sets forth the general rule that 
Federal disbursing officials are authorized to offset Federal payments 
to collect delinquent State debts as long as the requirements of 31 
U.S.C. 3716(h) are met. Among other things, States must enter into 
reciprocal agreements with FMS that provide for the offset of State 
payments to collect Federal nontax debts.
    (d) Reciprocal agreements. Paragraph (d) sets forth the basic 
parameters for the reciprocal agreements between FMS and the States. As 
required by 31 U.S.C. 3716(h)(1)(B)(i), a State must enter into a 
reciprocal agreement before it may collect its debts through 
administrative offset under this section. The reciprocal agreement will 
contain more detailed provisions consistent with this rule. A 
reciprocal agreement will not necessarily require that each party will 
offset the exact same types of payments. FMS and the State shall 
determine which payments will be part of the offset programs in order 
to make the agreements mutually beneficial and, thus, reciprocal.
    (e) Requirements for administrative offset. Paragraph (e) sets 
forth the requirements for collecting State debts by administrative 
offset of Federal payments. State debts must meet the same eligibility 
requirements for administrative offset as Federal debts are required to 
meet under 31 CFR 285.5(d)(3)(i). States must comply with the same 
certification requirements as Federal agencies under 31 CFR 285.5(d)(6) 
except for requirements that are clearly inapplicable to administrative 
offset under this section. The specific exceptions are establishment of 
Federal salary offset procedures and the requirement to assess interest 
on Federal debts.
    Additionally, with respect to paragraph (d)(6)(ii) of section 285.5 
of this part, States will only be required to certify that they have 
complied with the requirements of 31 U.S.C. 3716 and this section; 
States are not required to certify compliance with 31 U.S.C. 3720A or 
26 U.S.C. 6402, both of which apply to Federal tax refund offsets. 
States shall also certify that they have complied with any requirements 
imposed by State law or procedure that may be applicable to 
administrative offset under this section.
    (f) Debts previously submitted by States for tax refund offset. 
Pursuant to 31 CFR 285.8, States have submitted delinquent State income 
tax obligations to FMS for collection by Federal tax refund offset. At 
the time of submission, States certified the debts in substantially the 
same manner as required under this rule, including that the State has 
given the debtor notice of the State's intention to collect the debt 
through offset of Federal tax refunds. State income tax obligations may 
also be collected by administrative offset under this rule. FMS has 
determined that it is unnecessary to require the States to

[[Page 1285]]

certify those debts again as a condition to eligibility for 
administrative offset under this rule. However, with respect to these 
debts, within 30 days of an administrative offset under this section, 
the State must notify the debtor in writing that the debtor may 
exercise the due process rights set forth in paragraph (e) of this 
rule, if the State has not previously notified the debtor that Federal 
payments other than tax refunds are subject to administrative offset, 
and the debtor has not exercised his or her due process rights prior to 
the submission of the debt to FMS. This paragraph also notes that 
nothing in this rule requires the State to duplicate any notice or any 
opportunity for a hearing or review previously provided to the debtor.
    (g) Federal Payments subject to administrative offset under this 
section. Paragraph (g) states that the types of Federal payments that 
will be offset to collect a State's debts shall be set forth in the 
reciprocal agreement. A number of payment types are expressly excluded 
from administrative offset under this rule. In accordance with the 
statutory prohibitions contained in 31 U.S.C. 3716(h), disbursing 
officials may not offset the following payments to collect debts under 
this rule: (a) Any payments exempted from offset as set forth in 31 CFR 
285.5(e)(2); (b) payments due to an individual under the Social 
Security Act; (c) payments due an individual pursuant to part B of the 
Black Lung Benefits Act; and (d) payments due an individual pursuant to 
any law administered by the Railroad Retirement Board. Additionally, as 
explained above, offset of Federal tax refunds and salary payments are 
not authorized by this rule.
    (h) Conducting the administrative offset. Paragraph (h) instructs 
Federal disbursing officials to conduct administrative offset under 
this rule in the same manner as under 31 CFR 285.5. This paragraph also 
specifies the priority for applying offset funds when a payment matches 
with multiple debts in TOP. FMS uses TOP to collect many types of 
delinquent debts under various legal authorities. If a payment matches 
with multiple debts, the disbursing official shall apply offset amounts 
to all other types of debts collected by offset under subpart A of 31 
CFR part 285 (i.e., debts owed to Federal agencies and past due support 
debts) before applying any available amounts to a debt under this rule. 
Additionally, in accordance with 31 U.S.C. 3716(c)(8), a levy pursuant 
to the Internal Revenue Code has precedence over offsets under this 
section. Disbursing officials, therefore, will satisfy a levy to 
collect tax debts prior to offsetting funds under this section.
    (i) Liability of disbursing officials and payment agencies. 
Paragraph (i) restates the statutory provision that disbursing 
officials and payment agencies shall not be liable to the payee for 
nonpayment of any amounts offset under this rule.
    (j) Notification to a State of Federal debt. Paragraph (j) 
addresses the requirements for offsetting a State payment to collect a 
Federal debt. State payment offset is governed by the law of the State 
conducting the offset. This paragraph provides that all State law 
requirements that Federal creditor agencies must meet for State payment 
offset shall be set forth in the reciprocal agreement. Such 
requirements shall not exceed the requirements for collecting Federal 
debts by administrative offset under 31 CFR 285.5(d). This paragraph 
also provides that FMS will certify to the State conducting the offset 
that the Federal debts FMS submits to the State have been certified as 
valid and legally enforceable in accordance with 31 U.S.C. 3716(a).
    (k) Conducting State payment offset. Paragraph (k) provides that 
States shall conduct State payment offset pursuant to the State's laws 
and regulations. The paragraph sets forth two requirements regarding 
State payment offset that parallel requirements for conducting 
administrative offset. First, in the case of a State payment that is 
payable to two or more joint payees, the entire payment shall be 
subject to offset to collect the debt of any one of the payees, unless 
prohibited by State law. Such prohibition must be set forth in the 
reciprocal agreements. Because the Treasury Offset Program only matches 
one debtor at a time per payment, FMS will generally not enter into 
reciprocal agreements that prohibit offsetting a payment to collect a 
debt owed by only one of the joint payees. Second, if a payment is made 
to a person solely in that person's capacity as a representative payee 
for another person having the beneficial interest in the payment, the 
State disbursing official shall only offset such payments for the debts 
of the person having the beneficial interest. For example, if a State 
makes a payment to a minor child, and the payment is made payable to 
that child's parent as the representative payee for that child, the 
State shall not offset the payment to collect a debt that the parent 
owes to the United States.
    Paragraph (k) also sets forth the requirement that the State notify 
the payee of any State payment offset. While the reciprocal agreement 
may set forth additional requirements, this rule requires, at a 
minimum, that the notice inform the payee of the type and amount of the 
payment that was offset, the identity of the Federal agency that 
requested the offset, and a contact point within the Federal agency 
that will handle concerns regarding the offset. Operationally, FMS will 
provide this information to the State at the time FMS requests the 
State payment offset.
    (l) Limitations. Paragraph (l) sets forth limitations on the 
collectibility of both Federal and State debts. Debts shall remain 
eligible for State payment offset or administrative offset, as 
applicable, so long as the debts remain valid and legally enforceable 
for purposes of offset. Among other things, this means that, unless 
otherwise provided by law, the debt has not been outstanding for more 
than 10 years. See 31 U.S.C. 3716(e). The 10-year limitation, however, 
does not apply to collecting debts reduced to judgment by 
administrative offset. See the Federal Claims Collection Standards at 
31 CFR 901.3(a)(4). There are no time limitations on collecting Federal 
judgments. Many State judgments are also not subject to time 
limitations. Therefore, this rule states that a Federal or State debt 
that has been reduced to judgment shall remain enforceable for purposes 
of administrative offset for as long as the judgment remains 
enforceable against the debtor under the laws applicable to the 
judgment.
    (m) Fees. Paragraph (m) states that FMS will deduct a fee from 
amounts offset pursuant to this rule. As required by 31 U.S.C. 
3716(c)(4), the fee will be in an amount that FMS has determined to be 
sufficient to reimburse FMS for the full cost of conducting offsets 
under this section. FMS will notify States and Federal agencies of the 
amount of the fee in advance.

Special Analysis

    FMS is promulgating this interim rule without opportunity for prior 
public comment pursuant to the Administrative Procedure Act, 5 U.S.C. 
553 (the ``APA''), because FMS has determined, for the following 
reasons, that a comment period would be unnecessary and contrary to the 
public interest. The DCIA provision authorizing the offset of Federal 
payments to collect delinquent debt owed to the States pursuant to 
reciprocal agreements was effective on August 26, 1996. A comment 
period is unnecessary because this interim rule does not change the 
ongoing offset process under the TOP, but rather provides guidance for 
State agencies and Federal disbursing officials to facilitate the 
addition of State debts into TOP. Under this interim rule, State

[[Page 1286]]

agencies are required to provide to the debtor the same pre-offset 
notice, opportunities, and rights to dispute the debt and seek waiver 
as currently required under 31 U.S.C. 3716 and 3720A and implementing 
regulations. Since this interim rule provides important guidance 
ensuring that debtors receive appropriate notices and opportunities 
from States that elect to participate, FMS believes that it is in the 
public interest to issue this interim rule without opportunity for 
prior public comment.
    For the same reasons, FMS has determined that good cause exists to 
make this interim rule effective upon publication without providing the 
30-day period between publication and the effective date contemplated 
by 5 U.S.C. 553(d)(3). The public is invited to submit comments on the 
interim rule, which will be taken into account before a final rule is 
issued.

Regulatory Analysis

    This interim rule is not a significant regulatory action as defined 
in Executive Order 12866. Because no notice of proposed rulemaking is 
required for this rule, the provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) do not apply.

Federalism

    This rule has been reviewed under Executive Order 13132, 
Federalism. This rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Participation in the program governed by 
this rule is voluntary for the States, and this rule only sets forth 
the general procedures for State participation. Additionally, as 
described above, FMS has worked closely with States in the development 
of a pilot program that will operate pursuant to this interim rule. As 
part of that collaborative process, FMS has consulted with the States 
participating in the pilot regarding the provisions of this rule and 
the operational requirements for participation. Therefore, in 
accordance with Executive Order 13132, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

List of Subjects in 31 CFR Part 285

    Administrative practice and procedure, Black lung benefits, Child 
support, Claims, Credit, Debts, Disability benefits, Federal employees, 
Garnishment of wages, Hearing and appeal procedures, Loan programs, 
Privacy, Railroad retirement, Railroad unemployment insurance, 
Salaries, Social Security benefits, Supplemental Security Income (SSI), 
Taxes, Veteran's benefits, Wages.

Authority and Issuance

0
For the reasons set forth in the preamble, 31 CFR part 285 is amended 
as follows:

PART 285--DEBT COLLECTION AUTHORITIES UNDER THE DEBT COLLECTION 
IMPROVEMENT ACT OF 1996

0
1. The authority citation for part 285 continues to read as follows:

    Authority: 5 U.S.C. 5514; 26 U.S.C. 6402; 31 U.S.C. 321, 3701, 
3711, 3716, 3719, 3720A, 3720B, 3720D; 42 U.S.C. 664; E.O. 13019, 61 
FR 51763, 3 CFR, 1996 Comp., p. 216.


0
2. Section 285.6 is added to part 285, subpart A, to read as follows:


Sec.  285.6  Administrative offset under reciprocal agreements with 
states.

    (a) Scope. (1) This section sets forth the rules that apply to the 
administrative offset of Federal nontax payments to collect delinquent 
debts owed to States. As set forth in 31 U.S.C. 3716(h), States may 
participate in administrative offset so long as they meet certain 
requirements, including entering into reciprocal agreements with the 
Secretary of the Treasury. Such reciprocal agreements may contain any 
requirements that the Secretary considers appropriate to facilitate 
offset. Participation in offset under this section is voluntary for 
both FMS and the States. This section prescribes the minimum 
requirements for such reciprocal agreements, including provisions 
applicable to the offset of State payments, pursuant to State law, to 
collect delinquent Federal debts. Such offsets are defined in this 
section as ``State payment offsets.''
    (2) This section does not apply to the offset of Federal salary 
payments, Federal tax refunds (see 31 CFR 285.8), or the collection of 
past-due support debts (see 31 CFR 285.1 and 285.3).
    (b) Definitions. (1) Unless otherwise defined in paragraph Sec.  
285.5(b) of this subpart.
    (2) For purposes of this section:
    Administrative offset has the meaning set forth in 31 U.S.C. 
3701(a) and means withholding funds payable by the United States to, or 
held by the United States for, a person to satisfy a debt owed by the 
payee. The term debt in this definition means a State debt.
    Debtor means a person who owes a debt to the United States or a 
State.
    Federal debt means any amount of money, funds or property that has 
been determined by an appropriate official of the Federal government to 
be owed to the United States by a person, organization, or entity, 
except another Federal agency. The term includes debt administered by a 
third party acting as an agent for the Federal Government. For purposes 
of this section, the term ``Federal debt'' does not include debts 
arising under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.), 
the tariff laws of the United States, or the Social Security Act (42 
U.S.C. 301 et seq.), except to the extent provided in sections 204(f) 
and 1631(b)(4) of such Act (42 U.S.C. 404(f) and 1383(b)(4)(A), 
respectively) and 31 U.S.C. 3716(c).
    Offset means withholding funds payable to a person to satisfy a 
debt owed by the payee.
    Participating State means a State that has entered into a 
reciprocal agreement under this section.
    Reciprocal agreement means a written agreement between FMS and a 
State, entered into pursuant to 31 U.S.C. Sec.  3716(h), which provides 
for administrative offset and State payment offset.
    State has the meaning set forth in 31 U.S.C. 3701(b)(2) and 
includes the several states of the United States, the District of 
Columbia, American Samoa, Guam, the United States Virgin Islands, the 
Commonwealth of the Northern Mariana Islands, and the Commonwealth of 
Puerto Rico.
    State debt means any amount of money, funds or property that has 
been determined by an appropriate State official to be owed to that 
State by a person, organization, or entity, except the United States, a 
foreign sovereign, or another State (including local governments within 
a State). For purposes of this rule, the term includes debt 
administered by a third party acting as an agent for the State.
    State payment offset means withholding funds payable by a State to, 
or held by a State for, a person to satisfy a debt owed by the payee to 
the United States.
    (c) General rule. FMS and other disbursing officials of the Federal 
Government will conduct administrative offset to collect past-due State 
debts certified to FMS, and participating States will conduct State 
payment offset to collect delinquent Federal debts in accordance with 
the terms of reciprocal agreements entered into between the States and 
FMS, acting on behalf of the Secretary. Upon notification of a 
delinquent State debt

[[Page 1287]]

from a participating State to FMS, disbursing officials of the United 
States shall offset the Federal payments specified in the reciprocal 
agreement to collect the State debt. The amount offset, minus an offset 
fee, shall be forwarded to the State to be distributed in accordance 
with applicable laws and procedures. Upon notification of a delinquent 
Federal debt from FMS to a participating State, authorized officials of 
the participating State shall conduct State payment offset as specified 
in the applicable reciprocal agreement to collect the Federal debt.
    (d) Reciprocal agreements. (1) FMS may enter into reciprocal 
agreements with States for administrative offset and State payment 
offset. The agreements shall contain any requirements which FMS 
considers appropriate to facilitate the offset and prevent duplicative 
efforts, and shall require States to prescribe procedures governing the 
collection of delinquent State debts which are substantially similar to 
requirements imposed on Federal agencies pursuant to 31 U.S.C. Sec.  
3716(b). States may prescribe such procedures through legislation or 
regulations, as deemed appropriate by State officials. States which 
have entered into a reciprocal agreement with FMS pursuant to this 
section may thereafter request, in the manner prescribed in the 
reciprocal agreement, that administrative offsets be performed. Such 
requests shall be made by the appropriate State disbursing official, 
which, for purposes of this section, means an appropriate official of 
the State agency that is responsible for collecting the State debt. 
Reciprocal agreements must be signed by a State official authorized to 
enter into such agreements.
    (2) Once FMS has entered into a reciprocal agreement with a State 
pursuant to this section, FMS may request that the State perform State 
payment offsets to collect delinquent Federal debts in accordance with 
the terms of the reciprocal agreement.
    (3) A duly executed reciprocal agreement is required before a State 
may request an administrative offset pursuant to 31 U.S.C. 3716(h).
    (e) Requirements for submitting State debts for administrative 
offset--(1) Debt eligibility. A State debt submitted to FMS for 
collection by administrative offset must meet the debt eligibility 
requirements of 31 CFR 285.5(d)(3)(i).
    (2) Certification. At the time a participating State notifies FMS 
of a State debt for purposes of collection by administrative offset 
under this section, the State shall comply with the certification 
requirements set forth in paragraph 31 CFR 285.5(d)(6) with the 
following two exceptions:
    (i) Paragraph (d)(6)(ii)(E)--Federal salary offset; and
    (ii) Paragraph (d)(6)(iii)--Federal requirements for the assessment 
of interest and penalties to Federal debts. Additionally, with respect 
to paragraph (d)(6)(ii) of Sec.  285.5, States shall only be required 
to certify that they have complied with the requirements of 31 U.S.C. 
3716 (not 31 U.S.C. 3720A or 26 U.S.C. 6402) and this section 285.6. 
States shall also certify that they have complied with any requirements 
imposed by State law or procedure that may be applicable to 
administrative offset.
    (f) State debts submitted to FMS for tax refund offset prior to the 
effective date of this section. A State shall be deemed to have 
complied with the requirements of paragraph (e)(2) of this section with 
respect to any State debt that the State certified to Treasury prior to 
the effective date of this section for collection pursuant to 31 CFR 
285.8, Offset of tax refund payments to collect state income tax 
obligations. However, within 30 days of an administrative offset under 
this section, the State shall notify the debtor in writing that the 
debtor may exercise the rights set forth in the applicable sections of 
31 CFR 285.5(d) as set forth in paragraph (e) of this section, only if 
the State has not previously informed the debtor in writing that 
Federal payments other than tax refunds may be offset to collect the 
State debt, and the debtor has not exercised such rights previously 
with respect to the State debt that was collected by the offset. 
Nothing in this section requires any State to duplicate any notice or 
any opportunity for a hearing or review provided to the debtor prior to 
administrative offset.
    (g) Federal Payments subject to administrative offset under this 
section. (1) The Federal payments that will be offset to collect a 
participating State's debts shall be set forth in the reciprocal 
agreement. Federal payments that are excluded from administrative 
offset under this section include:
    (i) Any payments described in 31 CFR 285.5(e)(2) ``Payments 
excluded from offset'';
    (ii) Payments due to an individual under the Social Security Act;
    (iii) Payments due an individual pursuant to part B of the Black 
Lung Benefits Act;
    (iv) Payments due an individual pursuant to any law administered by 
the Railroad Retirement Board;
    (v) Federal tax refunds; and
    (vi) Federal salary payments.
    (h) Conducting the administrative offset. (1) Disbursing officials 
shall conduct administrative offset under this section in the same 
manner as set forth in 31 CFR 285.5(f) through (i).
    (2) When a payee owes more than one delinquent State debt which has 
been referred to FMS for collection, amounts will be applied to 
delinquent State debts under this section after any amounts offset 
pursuant to any other section of this subpart A and any amounts levied 
pursuant 26 U.S.C. 6331.
    (i) Liability of disbursing officials and payment agencies. Neither 
the Federal disbursing official nor the agency authorizing the Federal 
payment shall be liable to a debtor for the amount of the 
administrative offset on the basis that the underlying obligation, 
represented by the payment before the administrative offset was taken, 
was not satisfied.
    (j) Notification to a State of Federal debt. (1) A State may set 
forth in the reciprocal agreement the requirements for FMS to follow 
when submitting a Federal debt for collection by State payment offset. 
Such agreements shall set forth all requirements contained in State law 
for the State payment offset. Such requirements, however, may not 
exceed the requirements for collecting Federal debts by administrative 
offset as set forth in Sec.  285.5(d) of this subpart.
    (2) FMS shall certify to a participating State that each debt FMS 
submits for State payment offset has been certified by the Federal 
creditor agency to be delinquent, valid, and legally enforceable in the 
amount stated, and that the Federal creditor agency owed the debt has 
complied with the requirements of 31 U.S.C. 3716(a) prior to submitting 
the debt for offset.
    (k) Conducting State payment offset. (1) An official of a 
participating State shall conduct State payment offset pursuant to the 
laws and regulations of the participating State; provided that:
    (i) If a payment is owed jointly to more than one payee, the entire 
payment shall be offset for a debt of either payee, unless otherwise 
prohibited by law or regulation; and
    (ii) If a payment is made to a person solely in that person's 
capacity as a representative payee for another person having the 
beneficial interest in the payment, the disbursing official shall 
offset that payment only to collect debts owed by the person having the 
beneficial interest in the payment.
    (2) Any prohibitions on offsetting a joint payment described in 
paragraph (k)(1)(i) of this section shall be set forth in the 
reciprocal agreement.
    (3) An official of the participating State shall notify the payee 
of the State

[[Page 1288]]

payment offset. The reciprocal agreement may contain detailed guidance 
and procedures regarding sending such notice, but shall, at a minimum 
require that the notice inform the payee of:
    (i) The type and amount of the payment that was offset;
    (ii) The identity of the Federal agency that requested the offset; 
and
    (iii) A contact point within the Federal agency that will handle 
concerns regarding the offset.
    (l) Limitations. A debt properly submitted to FMS or the State for 
administrative offset or State payment offset shall remain subject to 
collection until withdrawn by the entity that submitted the debt for 
collection, provided the debt remains past-due and legally enforceable 
for purposes of administrative offset or State payment offset, as 
applicable. A debt which has been reduced to a judgment shall remain 
legally enforceable for purposes of administrative offset and State 
payment offset for as long as the judgment remains enforceable against 
the debtor.
    (m) Fees. FMS shall deduct a fee from each administrative offset 
and State payment offset amount before transferring the balance of the 
offset funds to the State or Federal agency owed the debt. Pursuant to 
31 U.S.C. 3716(c)(4), the fee will be in an amount that FMS has 
determined to be sufficient to reimburse FMS for the full cost of the 
offset procedure. FMS will notify the States and creditor agencies, 
annually and in advance, of the amount of the fee FMS will charge for 
each offset.

    Dated: January 4, 2007.
Kenneth R. Papaj,
Commissioner.
 [FR Doc. E7-127 Filed 1-10-07; 8:45 am]
BILLING CODE 4810-35-P