ML20005E526
| ML20005E526 | |
| Person / Time | |
|---|---|
| Issue date: | 06/20/1988 |
| From: | Ragan H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Mcdonald W NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| Shared Package | |
| ML20005E490 | List: |
| References | |
| FRN-53FR39480, RULE-PR-15 AC87-1-13, NUDOCS 9001080068 | |
| Download: ML20005E526 (6) | |
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June 20, 1988-1 MEMORANDUM FOR:
William G. Mcdonald, Directo'r Office of Administration and Resources Management Hudson B. Ragan
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Assistant General. Counsel
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,S for Administration Office of the General Counsel
SUBJECT:
PROPOSED REGULATIONS -- DEBT COLLECTION PROCEDURES a
On May 27, 1988, you requested.our review of a proposed rule to amend 10 CFR Part 15 of the Commission's regulations.
In accordance with your request, our comments are provided below.
~ During the course of the review, the Director. Office of Enforcement raised
.i the question of whether civil penalties assessed by NRC.are required to be i
included under NRC!s Part 15 debt collection procedures. The following advice
- was given.to the Director, Office of Enforcement and members of your staff.
Civil Penalties assessed by the NRC pursuant to Section 234 of the Atomic 1
Energy Act and 10 CFR 2.205'are not required to be covered under the Part 15 debt collection procedures.
See, Federal'CjaimsCollectionActof1966, Section 4, Pub. L.89-508; 4 LTR $ 101.4 of the Federal Claims Collection Standards. Since the NRC has a specific statutory provision and implementing regulations which are applicable to the compromise, mitigation, or termination of civil' penalty claims, those authorities take precedence over the Federal Claims CollectiES Standards ~.
See, 4 CFR 6 101.4. However, the Federal Claims Collective Standards do govern where neither the specific statute (Section 234, of the Atomic Energy Act) nor its. implementing regulations (10 CFR 2.205) govern such matters.
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Consequently, civil penalties should
-continue to be excluded from coverage under 10 CFR Part 15, except for the purpose of assessing interest, penalties, and administrative costs under i
Section 15.37 since these changes are requifed to be as'sessed under the Debt j
Collection Act of 1982 (Pub.L.97-365). Accordingly, based on my discussions
' with your staff, proposed Section 15.5 will be appropriately modified.
Based on a review of the language of the proposed rule as reflected in Enclosure A, this office has the following additional coments:
(1) On page 2 of Enclosure A, the cite "47 FR 7616" should be
[I-changed to "47 FR 7615" and the cite "(31 U.S.C. 3701)" should be changed to read "(31 U.S.C. 5 3701 et seq.)".
On the third line from the bottom of the same page, the word " provision" should be changed to read " revision."
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(2) On page 12 of Enclosure A. Section 15.1(a) should be revised 1/f by_. inserting the words "in the form of money or property"
.V after the word " Government" to make the provision consistent with 4 CFR % 101.2 of the Federal Claims Collection Standards
(" Collection Standards") and 31 U.S.C. $'3711(a)(1).
P [f-(3) Onpage12ofEnclosureA.Section15(b)(2)shouldberevised since Civil Penalties will generally not be covered by 10 CFR gi v(
Part 15 except for the assessment of intarest, penalty and 1
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administrative costs.
gk) On page 13 of Enclosure A, the definition of " Administrative offset" under Section 15.2 should be revised since it does not reflect the definition contained in the Debt Collection Act of 1982 (See, 6 10 Pub. L.97-365 (31 U.S.C. $ 3701(a)(1)).
_ / (5) The definition of " delinquent debt" under Section 15.2 tracks the definition of " delinquent" under section 4 CFR $ 101.2 of the Collection Standards. Since the above " delinquent-debt" is rarely, if ever, used under Part 15 the phrase " delinquent debt" under Section 15.2 should be changed to read
" delinquent."
/(6) Under Section 15.2, the definition of " license" is broader 4
than the definition of license as set forth in the
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Consnission's rules of practice (See,10 CFR $ 2.4(i)). Unless the Debt Collection Act or Collection Standards provide (s) some compelling reason for such a broader definition, the definition of license should be revised by deleting "or other approval".
(7) At the end of the definition of " Payment in full" under Section 15.2, the word " debt" should be changed to " debtor."
(8) The numbering under proposed Section 15.5(b) will have to
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change since civil penalties will generally not be covered by N
the Part 15 debt collection procedures.
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In the heading of Subpart B, the word " Administration" should be changed to " Administrative."
(10) Before the NRC can exercise the authority under Section 15.26 V
to disclose information concerning the debt to a consumer Sg -
reporting agency, the Debt Collection Act requires that a (f
notice under the Privacy Act indicating that information in a system of records may be disclosed to a consumer reporting sj agency (See, 31 U.S.C. S 3711(f)(1)).
I do not believe that gV NRC's system of records currently provide for disclosure of debt information to consumer reporting agencies.
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hhse ntly, the Regulatory Publications Branch, Division of Freedom of Information and Publications Services should be.
contacted to develope the appropriate modification to NRC's v
system of records.
(11) Before disclosing information.to a consumer reporting agency under Section 15.26, the Debt Collection Act requires that NRC m
must-(1) provide the debtor, upon request, a review of the claim. including an opportunity for reconsideration of the initial decision on the claim, and (2) take reasonable action F
to locate a debtor for whom the NRC does not have a current address to send the notice called for under proposed Section 15.26(b),(See,31U.S.C.63711(f)(2)and(3)). These statutory requirements should De added to the proposed amendments to Part 15.
(12) Under the Debt Collection Act the NRC is required to provide the debtor notice of the matters set forth in Section 15.26(b)(1),(2),(3)and(4)priortodisclosingtoa consumer rep (orting agency that the debtor is responsible for the debt.
See 31 U.S.C. G 3711(f)(1)).
Consequently, the language of Section 15.26(b) indicating that the "NRC may include a notification..." of the matters in Section i
i 15.26(b)(6) suggests that the NRC has discretion on what to include in the notification. The NRC does have discretion in choosing which written demand will include the Section i
15.26(b) notification.
However, if the NRC decides to
.l disclose the matter to a consumer reporting agency, the NRC does not have discretion to determine whether the matters contained in Section 15.26(b)(1)-(4) will be included in the l
L Section 15.26(b) notification.
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(13) For proposed Section 15.33, the following coments are 4
l applicable:-
l (a) The procedures for this section are consistent with Section 102.3 of the Federal Claims Collection Standards procedures for dealing generally with j
administrative offset.
However, there are different q
procedures that govern two specific types of administrative offset.
First, Section 102.4 of the V i ollection Standards govern offset against amounts C
( payable from Civil Service Retirement Disability Funds. Second, 5 U.S.C. $ 5514 governs offset against salary. The procedures for these two i pecific types of administrative offset are not
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covered by proposed Section 15.33. Consequently, proposed section should be appropriately revised.
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Since there are special procedures for salary
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'(b) -offset, the statutory cite for those procedures
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(c) Section15.33(a)/ indicates'thatthe/u;nning.ofthe e
10 year statute bf limitation on collection by administrative offset can be suspended where-the g* 6 Jg g'/')
Collection Standards provides grounds under which an a
agency may waive interest, penalties, and/or administrative costs that are not addressed by
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Section 15.37.
It is not clear why those other grounds are not addressed or referenced as a bcsis for waiver.
'c (15) Proposed Section 15.37(f) provides that the NRC "may" assess. administrative costs resulting from a-delinquent 1
debt.
However, Section 11 of the Debt Collection Act and 4 C.F.R. l 102.13(d) of the Federal Claims Collection Standards indicate that an agency "shall" assess such administrative costs, V'(16) For change number 21, the words "first sentence" should c
be substituted for "second line."
(17) For proposed Section 15.61(d), the last sentence should be revised to read as follows:
"The NRC'shall immediately notify GA0 or D0J, as appropriate, of_ any payments by the debtor."
Should you or your staff have any questions about these comments you may centact Donald Hassell of my staff at 492-1555.
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w-Hudson B. Ragan Assistant General Counsel for Administration Office of the General Counsel cc:
W. Parler J. Murray-J. Lieberman l
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