[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Proposed Rules]
[Pages 74098-74101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28768]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

49 CFR Part 89

[Docket No. DOT-OST-2008-0329]
RIN 2105-AD78


Administrative Wage Garnishment

AGENCY: Office of the Secretary of Transportation (OST), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This proposed rule would implement the authority established 
under the Debt Collection Improvement Act of 1996 (DCIA) for DOT to 
collect the Department's past due indebtedness through administrative 
wage garnishment. The proposed rule would adopt, without change, the 
hearing procedures issued by the Department of the Treasury 
implementing administrative wage garnishment under the DCIA. This 
proposed rule would apply only to individuals who are not Federal 
employees. The proposed rule also would amend regulations on procedures 
for the collection of claims to conform DOT regulations to applicable 
provisions of the DCIA.

DATES: Comments must be received on or before February 3, 2009.

ADDRESSES: Comments should reference Docket No. DOT-OST-2008-0329 and 
may be submitted the following ways:
     E-Gov Web site: http://www.regulations.gov. This Web site 
allows the public to enter comments on any Federal Register notice 
issued by any agency. Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: DOT Docket Management System: U.S. Department of 
Transportation, Docket Operations, M-30, West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington DC, 20590-0001.
     Hand Delivery: DOT Docket Management System; West 
Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: You should identify the docket ID, DOT-ST-2008-0329, 
at the beginning of your comments. If you submit your comments by mail, 
submit two copies. To receive confirmation that OST received your 
comments, include a self-addressed stamped postcard. Internet users may 
submit comments at http://www.regulations.gov. Note:

[[Page 74099]]

Comments are posted without changes or edits to http://www.regulations.gov, including any personal information provided. 
Please see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION 
section of this NPRM.

Electronic Access and Filing

    You may submit or retrieve comments online through http://www.regulations.gov, which is available 24 hours each day, 365 days 
each year. Electronic submission and retrieval help and guidelines are 
available under the help section of the Web site.
    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at http://www.archives.gov/federal_register and the Government Printing Office's Web page at 
http://www.gpoaccess.gov.

FOR FURTHER INFORMATION CONTACT: Edward C. Ramos, Collections 
Specialist, Office of the Secretary of Transportation, Department of 
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590; 
(202) 366-5905. Hearing and speech-impaired persons may access this 
number via TTY by calling the Federal Information Relay Service at 1-
800-877-8339.

Electronic Access and Filing

    You may submit or retrieve comments online through http://www.regulations.gov, which is available 24 hours each day, 365 days 
each year. Electronic submission and retrieval help and guidelines are 
available under the help section of the Web site.
    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at http://www.archives.gov/federal_register and the Government Printing Office's Web page at 
http://www.gpoaccess.gov.

SUPPLEMENTARY INFORMATION: 

Background

    In 1996, Congress enacted the Debt Collection Improvement Act of 
1996 (Pub. L. 104-134, 110 Stat. 1321-1358, approved April 26, 1996), 
which amended the Debt Collection Act of 1982. Section 31001(o) of the 
DCIA authorizes collection of Federal agency debt by administrative 
wage garnishment (section 31001(o) is codified at 31 U.S.C. 3720D). 
Wage garnishment is a legal process whereby an employer withholds 
amounts from an employee's wages and pays those amounts to the 
employee's creditor in satisfaction of a withholding order. The DCIA 
authorizes Federal agencies to garnish up to 15% of the disposable pay 
of a debtor to satisfy delinquent nontax debt owed to the United 
States. Prior to the enactment of the DCIA, agencies were required to 
obtain a court judgment before garnishing the wages of non-Federal 
employees.
    The DCIA directed the Secretary of the Treasury to issue 
implementing regulations (see 31 U.S.C. 3720D(h)) on this subject. On 
May 6, 1998 (63 FR 25136), the Department of the Treasury published a 
final rule implementing the statutory administrative wage garnishment 
requirements at 31 CFR 285.11. Paragraph (f) of 31 CFR 285.11 provides 
that ``[a]gencies shall prescribe regulations for the conduct of 
administrative wage garnishment hearings consistent with this section 
or shall adopt this section without change by reference.'' Under the 
DCIA, the Treasury Department serves as a coordinator for Federal debt 
collection through its Treasury Offset Program.
    This proposed rule would amend DOT's regulations at 49 CFR part 89, 
subpart B to adopt 31 CFR 285.11 in its entirety. Specifically, the 
proposed rule would establish a new 49 CFR 89.35 that would contain a 
cross-reference to 31 CFR 285.11.

Overview of the Administrative Wage Garnishment Process

    Readers should refer to the Department of the Treasury regulation 
at 31 CFR 285.11 for details regarding the administrative wage 
garnishment procedures that would be adopted by this proposed rule. For 
the convenience of readers, the following presents a very brief 
overview of the rules and procedures codified at 31 CFR 285.11.
    1. Notice to debtor. At least 30 days before the agency initiates 
garnishment proceedings, the agency will give the debtor written notice 
informing him or her of the nature and amount of the debt, the 
intention of the agency to collect the debt through deductions from 
pay, and an explanation of the debtor's rights regarding the proposed 
action.
    2. Rights of debtor. The agency will provide the debtor with an 
opportunity to inspect and copy records related to the debt, to 
establish a repayment agreement, and to receive a hearing concerning 
the existence or amount of the debt and the terms of a repayment 
schedule. A hearing must be held prior to the issuance of a withholding 
order if the debtor's request is timely received. For hearing requests 
that are not received in the specified timeframe, the agency need not 
delay the issuance of a withholding order prior to conducting a 
hearing. An agency may not garnish the wages of a debtor who has been 
involuntarily separated from employment until that individual has been 
reemployed continuously for at least 12 months. The debtor bears the 
responsibility of notifying the agency of the circumstances surrounding 
an involuntary separation from employment.
    3. Hearing official. The Department of the Treasury regulations 
authorize the head of each agency to designate any qualified individual 
as a hearing official. This proposed rule would provide that any 
hearing required to establish DOT's right to collect a debt through 
administrative wage garnishment will be conducted by a qualified 
individual selected by the Secretary of Transportation. The hearing 
official is required to issue a written decision no later than 60 days 
after the request for a hearing is made. The hearing official's 
decision is the final agency action for purposes of judicial review.
    4. Employer's responsibilities. The Treasury Department will send a 
wage garnishment order to the employer of a delinquent debtor, 
directing that the employer pay a portion of the debtor's wages to the 
Federal Government. The employer is required to certify certain payment 
information about the debtor. Employers are not required to vary their 
normal pay cycles in order to comply with these requirements. Employers 
are prohibited from taking disciplinary actions against the debtor 
because the debtor's wages are subject to administrative garnishment. 
An agency may sue an employer for amounts not properly withheld from 
the wages payable to the debtor.
    5. Garnishment amounts. As provided in the DCIA, no more than 15% 
of the debtor's disposable pay for each pay period may be garnished. 
Special rules apply to calculating the amount to be withheld from a 
debtor's pay that is subject to multiple withholding orders. A debtor 
may request a review by the agency of the amount being garnished under 
a wage garnishment order based on materially changed circumstances, 
such as disability, divorce, or catastrophic illness, which result in 
financial hardship.

Rulemaking Analyses and Notices

E.O. 12866 and DOT Regulatory Policies and Procedures

    The Department has evaluated this NPRM in accordance with existing 
regulatory policies and procedures and has concluded that it is a 
nonsignificant regulatory action under E.O. 12866, and a nonsignificant 
rule under section 5(a)(4) of the DOT Regulatory Policies and 
Procedures (44 FR 11034, February 26, 1979).

[[Page 74100]]

    The NPRM is not a significant regulatory action under E.O. 12866 
because it will not have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; will not create a serious inconsistency 
with an action planned or underway by another Federal agency; will not 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; and will not raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles of the 
Executive Order.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), we have evaluated the effects of this action on 
small entities and have determined that the action will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, the Department certifies that this rule would not have a 
significant economic impact on a substantial number of small entities.
    Employers of delinquent debtors must certify certain information 
about the debtor such as the debtor's employment status and earnings. 
This information is contained in the employer's payroll records. 
Therefore, it will not take a significant amount of time or result in a 
significant cost for an employer to complete the certification form. 
Even if an employer is served withholding orders on several employees 
over the course of a year, the cost imposed on the employer to complete 
the certifications would not have a significant economic impact on an 
entity. Employers are not required to vary their normal pay cycles in 
order to comply with a withholding order issued pursuant to this 
proposed rule.
    Notwithstanding DOT's determination that this rule will not have a 
significant economic impact on small entities, DOT specifically invites 
comments regarding alternatives to this rule that would meet DOT's 
objectives as described in this preamble.

Executive Order 13132 (Federalism)

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on State and local 
governments and is not required by statute, or the rule preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order.
    This proposed rule does not have federalism implications and does 
not impose substantial direct compliance costs on State and local 
governments or preempt State law within the meaning of the Executive 
Order.

Executive Order 13084

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule would 
not significantly or uniquely affect the Indian tribal communities, and 
would not impose substantial direct compliance costs, the funding and 
consultation requirements of the Executive Order do not apply.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 establishes 
requirements for Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments and the 
private sector.
    This rule would not impose a Federal mandate on any State, local, 
or tribal government, or on the private sector, within the meaning of 
the Unfunded Mandates Reform Act of 1995.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) addresses the 
collection of information by the Federal government from individuals, 
small businesses and State and local government and seeks to minimize 
the burdens such information collection requirements might impose. A 
collection of information includes requiring answers to identical 
questions posed to, or identical reporting or recordkeeping 
requirements imposed on, ten or more persons, other than agencies, 
instrumentalities or employees of the United States.
    This proposed rule contains information that would apply to 
individuals and possibly small entities. However, there are no 
reporting or other collection requirements associated with this 
proposed rule, even though it relates to an employer's certification of 
certain information about the debtor, such as the debtor's employment 
status and earnings, which would be inquiries on a one-time basis. In 
any case, comments in this area are welcomed.

National Environmental Policy Act

    In accordance with 24 CFR 50.19(c)(1) of the Department's 
regulations, this proposed rule does not direct, provide for assistance 
or loan and mortgage insurance for, or otherwise govern or regulate, 
real property acquisition, disposition, leasing, rehabilitation, 
alteration, demolition, or new construction, or establish, revise, or 
provide for standards for construction or construction materials, 
manufactured housing, or occupancy. Therefore, this proposed rule is 
categorically excluded from the requirements of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.).

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action.
    The Department has evaluated this NPRM in accordance with Executive 
Order 13211 and it has determined that this NPRM is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy. Consequently, the Department has determined that this NPRM is 
not a ``significant energy action'' within the meaning of the Executive 
Order.

Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc). You may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may 
visit: http://www.regulations.gov.

[[Page 74101]]

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 89

    Claims, Debt collection.

The Proposed Rule

    For the reasons set forth in the preamble, OST proposes to amend 
Part 89 of subtitle A of title 49, Code of Federal Regulations, as set 
forth below:

PART 89--[AMENDED]

    1. The authority citation for 49 CFR part 89 continues to read as 
follows:

    Authority: Pub. L. 89-508; Pub. L. 89-365, secs. 3, 10, 11, 
13(b), 31 U.S.C. 3701-3720A; Pub. L. 98-167; Pub. L. 98-369; Pub. L. 
99-578; Pub. L. 101-552, 31 U.S.C. 3711(a)(2).

    2. Add new Sec.  89.35 to read as follows:


Sec.  89.35  Administrative wage garnishment.

    (a) General. The Secretary may use administrative wage garnishment 
for debts referred to cross-servicing at Financial Management Service, 
Department of Treasury. Regulations in 31 CFR 285.11 govern the 
collection of debts owed to federal agencies through administrative 
wage garnishment. Whenever the Financial Management Service collects a 
debt for the Secretary using administrative wage garnishment, the 
statutory administrative requirements in 31 CFR 285.11 will govern.
    (b) Hearing official. Any hearing required to establish the 
Secretary's right to collect a debt through administrative wage 
garnishment shall be conducted by a qualified individual selected at 
the discretion of the Secretary of Transportation, as specified in 31 
CFR 285.11. The qualified individual may include an Administrative Law 
Judge.

    Dated: November 24, 2008.
Mary E. Peters,
Secretary of Transportation.
[FR Doc. E8-28768 Filed 12-4-08; 8:45 am]
BILLING CODE 4910-9X-P