Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 32099 

■ 8. Section 341.7 is revised to read as 

follows: 

§ 341.7 Concurrences. 

Concurrences must be shown in the 

carrier’s tariff and maintained consistent 

with the requirements of Part 341 of this 

chapter. 

■ 9. Amend § 341.9 by revising the first 

sentence of paragraph (a), adding 

paragraph (a)(5), removing paragraphs 

(b) through (d) and (f), and redesignating 

paragraph (e) as paragraph (b) and it to 

read as follows: 

§ 341.9 Index of tariffs. 

(a) * * * Each carrier with more than 

two tariffs or concurrences must post on 

its public Web site a complete index of 

all effective tariffs to which it is a party, 

either as an initial, intermediate, or 

delivering carrier. * * * 

* * * * * 

(5) Product Shipped and Origin. Each 

index must identify, for each tariff, the 

product or products being shipped and 

the origin and destination points 

specific to each product or products. 

(b) Updates. The index of tariffs must 

be updated within 90 days of any 

change to an effective tariff. 

§ 341.11 [Amended] 

■ 10. In § 341.11(b), remove the second 

sentence. 

§ 341.13 [Amended] 

■ 11. In § 341.13(c), remove the second 

sentence. 

[FR Doc. 2013–12140 Filed 5–28–13; 8:45 am] 

BILLING CODE 6717–01–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 831, 841 

RIN 3206–AM17 

RAILROAD RETIREMENT BOARD 

20 CFR Part 350 

RIN 3220–AB63 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404, 416 

RIN 0960–AH18 

DEPARTMENT OF THE TREASURY 

Fiscal Service 

31 CFR Part 212 

RIN 1505–AC20 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 1 

RIN 2900–AN67 

Garnishment of Accounts Containing 

Federal Benefit Payments 

AGENCY: Fiscal Service (Treasury), 

Department of the Treasury; Social 

Security Administration (SSA); 

Department of Veterans Affairs (VA); 

Railroad Retirement Board (RRB); Office 

of Personnel Management (OPM). 

ACTION: Final rule. 

SUMMARY: Treasury, SSA, VA, RRB and 

OPM (Agencies) are adopting as final an 

interim rule to amend their regulation 

governing the garnishment of certain 

Federal benefit payments that are 

directly deposited to accounts at 

financial institutions. The rule 

establishes procedures that financial 

institutions must follow when they 

receive a garnishment order against an 

account holder who receives certain 

types of Federal benefit payments by 

direct deposit. The rule requires 

financial institutions that receive such a 

garnishment order to determine the sum 

of such Federal benefit payments 

deposited to the account during a two 

month period, and to ensure that the 

account holder has access to an amount 

equal to that sum or to the current 

balance of the account, whichever is 

lower. 

DATES: This final rule is effective June 

28, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Sheryl Morrow, Deputy Fiscal Assistant 

Secretary, at (202) 622–0560; Barbara 

Wiss, Fiscal Affairs Specialist, at (202) 

622–0570 or barbara.wiss@treasury.gov; 

or Natalie H. Diana, Senior Counsel, 

Financial Management Service, at (202) 

874–6680 or 

natalie.diana@fms.treas.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 19, 2010, the Agencies 

published a proposed rule to address 

concerns associated with the 

garnishment of certain exempt Federal 

benefit payments, including Social 

Security benefits, Supplemental 

Security Income (SSI) payments, VA 

benefits, Federal Railroad retirement 

benefits, Federal Railroad 

unemployment and sickness benefits, 

Civil Service Retirement System 

benefits and Federal Employees 

Retirement System benefits. See 75 FR 

20299. The Agencies received 586 

comments on the proposed rule. On 

February 23, 2011, the Agencies 

published an interim final rule and 

request for public comment. See 76 FR 

9939. The Agencies received 39 

comments on the interim final rule, 

including comments from individuals, 

consumer advocacy organizations, legal 

services organizations, an organization 

of credit and collection companies, a 

prepaid card association, and financial 

institutions and their trade associations. 

As described in Parts II and III of this 

SUPPLEMENTARY INFORMATION, this final 

rule amends certain provisions of the 

interim final rule to address certain 

issues raised by commenters. 

Interim Final Rule 

The interim final rule established 

procedures that financial institutions 

must follow when they receive a 

garnishment order for an account 

holder. Under the interim final rule, a 

financial institution that receives a 

garnishment order must first determine 

if the United States or a State child 

support enforcement agency is the 

plaintiff that obtained the order. If so, 

the financial institution follows its 

customary procedures for handling the 

order. If not, the financial institution 

must review the account history for the 

prior two-month period to determine 

whether, during this ‘‘lookback period,’’ 

one or more exempt benefit payments 

were directly deposited to the account. 

The financial institution may rely on the 

presence of certain Automated Clearing 

House (ACH) identifiers to determine 

whether a payment is an exempt benefit 

payment for purposes of the rule. 

The financial institution must allow 

the account holder to have access to an 

amount equal to the lesser of the sum 


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32100 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 

of exempt payments directly deposited 

to the account during the lookback 

period or the balance of the account on 

the date of the account review (the 

‘‘protected amount’’). In addition, the 

financial institution must notify the 

account holder that the financial 

institution has received a garnishment 

order. The notice must briefly explain 

what a garnishment is and must also 

include other information regarding the 

account holder’s rights. There is no 

requirement to send a notice if the 

balance in the account is zero or 

negative on the date of account review. 

Financial institutions may choose to use 

a model notice contained in the rule in 

order to be deemed to be in compliance 

with the notice content requirements. 

For an account containing a protected 

amount, the financial institution may 

not collect a garnishment fee from the 

protected amount. The financial 

institution may only charge a 

garnishment fee against funds in the 

account in excess of the protected 

amount and may not charge or collect a 

garnishment fee after the date of account 

review. Financial institutions that 

comply with the rule’s requirements are 

protected from liability. 

II. Comments and Analysis 

Scope (§ 212.2) 

Some commenters urged that the 

Agencies move expeditiously to cover in 

the rule all Federal payments protected 

from garnishment by statute, including 

military retirement payments. One 

commenter proposed that the rule be 

expanded to protect certain non-Federal 

payments deposited to bank accounts— 

specifically, payments originating from 

Employment Retirement Income 

Security Act (ERISA) retirement plan 

distributions. Other commenters 

suggested that the Agencies contact the 

U.S. Senate and propose legislation to 

make all Federal benefit payments 

exempt from garnishment. In contrast, a 

financial institution commenter argued 

that Federal benefit payments should 

not be protected from garnishment. One 

consumer organization recommended 

that the rule be revised to cover benefit 

payments made by check as well as 

payments made by direct deposit. 

An organization representing credit 

and collection companies requested that 

the final rule provide a procedure under 

which the creditor garnishing an 

account be granted access to the debtor’s 

account information, including, but not 

limited to, the amount held in the 

garnished account, documentation 

supporting the financial institution’s 

application of the final rule, and any 

calculations supporting the financial 

institution’s decision to not freeze 

certain funds. The association expressed 

concern that without any transparency 

into the deliberative process that a 

financial institution uses to decide 

which funds are protected by law, an 

environment could be created in which 

financial institutions would refuse to 

freeze funds in the garnished accounts 

without clear explanation or verified 

justification. 

As discussed in the preamble to the 

interim final rule, the Agencies have 

structured the rule to create a 

framework in which payments protected 

by statute from garnishment can be 

included in the future. Federal agencies 

that issue such payments can, through 

a public notice-and-comment 

rulemaking process, amend their 

regulations to provide that their exempt 

payments are covered by this rule. The 

Agencies would then issue a rulemaking 

to include those payments within the 

scope of the rule. The Agencies do not 

have authority to expand the rule to 

include non-Federal payments, nor do 

the Agencies believe it is appropriate to 

seek a legislative change to address 

Federal payments that they do not issue 

and over which they do not have 

regulatory jurisdiction. For the reasons 

discussed when promulgating the 

interim final rule, the Agencies do not 

believe it is feasible or necessary to 

address checks within the final rule. See 

76 FR 9939, 9941. 

The Agencies are not adopting the 

suggestion that creditors be granted 

access to debtors’ account information. 

Account information is protected under 

various State and Federal privacy laws. 

Creditors who believe that a legal basis 

exists to permit disclosure of a debtor’s 

account information should seek access 

to that information in accordance with 

such laws. 

Definition of Account (§ 212.3) 

The interim final rule defined an 

account to mean ‘‘an account, including 

a master account or sub account, at a 

financial institution and to which an 

electronic payment may be directly 

routed.’’ The Agencies received various 

requests asking for clarification of this 

definition. One commenter requested 

that the Agencies clarify that a ‘‘master’’ 

account, under which multiple sub 

accounts may be established and held, 

does not require an aggregate account 

review as a separate and distinct 

‘‘account’’ for purposes of the rule. 

Credit unions in particular requested 

clarification on whether a ‘‘whole share 

account,’’ as opposed to various sub 

accounts, is subject to the account 

review and lookback. 

Some credit unions commented that 

credit unions typically assign an 

individual member (or ‘‘primary’’) 

number to each member. The member 

may then open multiple accounts 

‘‘under’’ or ‘‘within’’ this member 

number with each account being 

designated by different ‘‘sub accounts’’ 

or ‘‘suffixes.’’ The member number does 

not denote an account per se, but rather 

serves as a ‘‘prefix’’ for all individual 

sub accounts of the member to or from 

which deposits and withdrawals may be 

made. For example, a new member 

might be given member number 9876. 

When the member opens a savings (or 

a share) account, that individual savings 

account might be noted as sub account 

‘‘S’’ or ‘‘01.’’ Similarly, if the same 

member establishes a checking (or share 

draft) account, that individual checking 

account might be noted as sub account 

‘‘C’’ or ‘‘02.’’ Both are sub accounts of 

the member’s ‘‘membership’’ account 

9876. 

The requirement to perform an 

account review applies to the deposit 

account to which a Federal payment is 

routed and credited. In cases where a 

payment recipient is assigned a member 

number that doesn’t represent an 

account per se, but that serves as a 

‘‘prefix’’ for individual sub accounts, it 

is the individual sub account (and not 

the ‘‘master account’’) that is subject to 

the account review and lookback. 

Definition of Benefit Payment (§ 212.3) 

Immediately following publication of 

the interim final rule, some financial 

institutions requested clarification on 

the definition of ‘‘benefit payment’’ for 

purposes of identifying Federal benefit 

payments. The interim final rule defines 

a benefit payment as a Federal benefit 

payment ‘‘with the character ‘XX’ 

encoded in positions 54 and 55 of the 

Company Entry Description field of the 

Batch Header Record of the direct 

deposit entry.’’ The Agencies were 

asked whether financial institutions 

may rely solely on the presence of the 

‘‘XX,’’ without regard to whether there 

is a ‘‘2’’ in the ‘‘Originator Status Code’’ 

field of the Batch Header Record for the 

payment. Financial institutions pointed 

out that it is possible that payments 

other than Federal payments could 

contain an ‘‘XX’’ encoded in positions 

54 or 55. 

Following the inquiry, the Agencies 

published guidance stating that 

financial institutions must verify that a 

payment containing an ‘‘XX’’ encoded 

in positions 54 or 55 is in fact a Federal 

benefit payment, which they may do by 

checking for a ‘‘2’’ in the ‘‘Originator 

Status Code’’ field of the Batch Header 

Record (Position 79) or by reviewing the 


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Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 32101 

1See www.fms.treas.gov/greenbook/ 

guidelines_garnish0311.pdf, at pp. 5–6. 

2New York CPLR5230 provides that ‘‘at any time 

before a judgment is satisfied. . . . An execution 

may be issued from the Supreme Court. . . . By the 

clerk of the court . . . or the attorney for the 

judgment creditor as an officer of the court. . . .’’ 

3Regulation CC, 12 CFR part 229, is the Federal 

Reserve regulation governing when funds deposited 

to bank accounts must be made available for 

withdrawal by customers. 

description of the payment in the ACH 

Batch Header Record Company Entry 

Description to ensure that the payment 

is one of the exempt Federal benefit 

types listed in the guidance.1 The 

Agencies are codifying this guidance by 

amending the definition of benefit 

payment in the final rule to provide that 

both the ‘‘XX’’ and the ‘‘2’’ be present 

in the appropriate locations of the Batch 

Header Record. 

Definition of Garnishment Order 

(§ 212.3) 

The Agencies received many requests 

for clarification on the definition of 

‘‘garnishment order’’ and some 

commenters indicated that confusion 

regarding the definition is resulting in 

compliance difficulties. Consumer 

advocacy groups, financial institutions, 

and banking associations recommend 

that the Agencies revise the definition of 

‘‘garnishment order’’ so that it is clear 

exactly what kinds of documents are 

considered garnishment orders. The 

interim final rule includes a broad 

definition of ‘‘garnishment,’’ which 

closely tracks the definition in the 

Agencies’ statutes. However, the rule’s 

requirements are triggered only by the 

receipt of a ‘‘garnishment order,’’ which 

was defined more narrowly in the 

interim final rule as ‘‘a writ, order, 

notice, summons, judgment, or similar 

written instruction issued by a court or 

a State child support enforcement 

agency . . .’’ (emphasis supplied). 

Under this wording, levies issued 

directly by a State agency such as a 

State revenue department would not be 

subject to the rule. 

The Agencies received many 

comments stating that levies are 

frequently issued directly by State 

agencies or municipalities to seize funds 

in bank accounts. Consumer advocacy 

groups expressed concern that the 

narrow definition of ‘‘garnishment 

order’’ leaves benefit payments exposed 

to improper garnishment and freezing. 

Some financial institutions commented 

that while they do not have a position 

on whether tax levies issued directly by 

a State agency should be included 

within the scope of the rule, guidance 

on the process of determining what sorts 

of orders or levies are within the scope 

of the rule would be helpful. One 

commenter suggested that the Agencies 

consider providing an exhaustive list 

and additional guidance as to exactly 

which garnishment orders are within 

the rule’s scope. 

Some commenters questioned 

whether the definition of garnishment 

order in the interim final rule applies to 

restraining orders, i.e., orders issued 

pursuant to judgments which restrain an 

account’s funds pending future legal 

action. Several commenters asked if 

orders issued by an attorney acting in 

his or her capacity as an officer of the 

court are considered to be issued by a 

court. For example, in the State of New 

York, garnishment orders (commonly 

referred to as levies and restraints) can 

be issued not only by courts, but also by 

attorneys acting on behalf of judgment 

creditors.2 One commenter asked if the 

rule applied to seizures in criminal 

actions. This commenter noted that the 

proposed rule had defined 

‘‘garnishment’’ as ‘‘execution, levy, 

attachment, garnishment, or other legal 

process to enforce a money judgment’’ 

(emphasis supplied), but that the phrase 

‘‘to enforce a money judgment’’ was 

removed from the definition of 

‘‘garnishment’’ in the interim final rule. 

The commenter questioned whether by 

removing the phrase, the Agencies 

intended that the rule cover not only 

civil money judgments, but also seizures 

in criminal actions. 

The Agencies are revising the 

definition of garnishment order to 

include orders or levies issued by a 

State or State agency or municipality. 

To remove any doubt as to whether the 

rule applies to restraining orders, the 

Agencies are amending the definition of 

garnishment order to include ‘‘an order 

to freeze the assets in an account.’’ With 

regard to the question of whether a 

‘‘garnishment order’’ includes an order 

issued by the clerk of the court or an 

attorney acting in his or her capacity as 

an officer of the court, it was not the 

Agencies’ intention that an order 

‘‘issued by a court’’ be so narrowly 

construed as to exclude such orders. 

The Agencies’ view is an order issued 

by the clerk of the court or an attorney 

acting in his or her capacity as an officer 

of the court in accordance with State 

law constitutes an order issued by the 

court. Lastly, the Agencies did intend by 

removing the phrase ‘‘to enforce a 

money judgment’’ from the definition of 

‘‘garnishment’’ in the interim final rule 

to ensure that the rule is not limited to 

civil money judgments. 

Definition of Lookback Period (§ 212.3) 

One commenter urged that the 

lookback period be extended from 2 

months to 65 days, while another 

commenter urged that it be shortened 

from 2 months to 30 days. For the 

reasons discussed in promulgating the 

interim final rule, the Agencies believe 

that a 2 month lookback period is 

appropriate. See 76 FR 9939, 9942. 

Definition of Protected Amount (§ 212.3) 

Several financial institutions 

requested guidance on how the account 

balance should be computed when 

conducting an account review and 

establishing a protected amount. The 

interim final rule defined the ‘‘protected 

amount’’ as the lesser of: (i) The sum of 

all benefit payments posted to an 

account between the close of business 

on the beginning date of the lookback 

period and the open of business on the 

ending date of the lookback period and 

(ii) the balance in an account at the 

open of business on the date of the 

account review. Some financial 

institutions commented that it was not 

clear whether the account balance for 

purposes of clause (ii) refers to the 

ledger balance, the memo ledger 

balance, the Regulation CC3 available 

funds balance or the memo available 

funds balance. Other commenters noted 

that the procedure for calculating the 

protected amount does not take into 

account intraday postings of credits or 

debits. Therefore, depending on the 

time of day that an account review is 

performed and whether items have been 

posted to the account during the day, 

establishing a protected amount without 

taking into account intraday debits 

could result in the establishment of a 

protected amount that exceeds the funds 

in the account. For example, if $1,000 

in protected funds were deposited 

during the lookback period, and the 

account balance was $600 at the open of 

business on the date of the account 

review, then the protected amount 

would be $600. If, however, the account 

review is performed in the afternoon, 

and all $600 had been withdrawn by the 

time the account review was performed, 

then the financial institution would be 

in the position of establishing and 

providing access to a $600 protected 

amount for an account containing no 

funds. 

To address this incongruity, the 

Agencies are amending the rule to 

provide that the relevant account 

balance is the account balance when the 

account review is performed, so that the 

balance will include intraday items 

such as ATM or cash withdrawals. 

Financial institutions should not use the 

Regulation CC available funds balance, 

but should be aware that the 


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32102 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 

4See discussion of section 212.6(b) at 76 FR 9952 

(‘‘requirement that a financial institution ensure 

that the account holder has access to the protected 

amount would be subject to any limitation on funds 

availability to which the account is subject. For 

example, if funds on deposit are subject to a hold 

consistent with Regulation CC, [footnote omitted] or 

a limitation on withdrawal applicable to a time 

deposit, the proposed rule would not override or 

affect those limitations.’’). 

5Federal benefit payments may be delivered only 

to deposit accounts at financial institutions (see 31 

CFR 210.5(a)). 

6See www.fms.treas.gov/greenbook/FAQs-May12-trsy-ver1.pdf. 

requirement to provide access to the 

protected amount is subject to the usual 

restrictions on funds availability under 

Regulation CC, as discussed in the 

preamble to the interim final rule.4 In 

addition, the Agencies do not intend 

that any line of credit associated with 

the account be considered as part of the 

‘‘account balance’’ for this purpose. 

One commenter questioned the 

calculation of the account balance in the 

context of accounts in which the 

concept of a ‘‘ledger balance’’ may be 

inappropriate. For instance, some 

accounts hold securities, alternative 

instruments, real estate, and other 

assets. For those accounts, the 

commenter suggested that the Agencies 

clarify that the account balance is the 

available market value of the account, 

which would be the opening balance on 

the day of account review minus 

intraday activity. The Agencies are not 

making this change because the rule 

applies only to deposit accounts held by 

a bank, savings association, credit 

union, or other entity chartered under 

Federal or State law to engage in the 

business of banking.5 The rule does not 

apply to asset accounts or address any 

protection that may exist for securities 

or other assets purchased with Federal 

benefit payments. 

Initial Action Upon Receipt of a 

Garnishment Order (§ 212.4) 

The Agencies received comments 

noting that although the interim final 

rule establishes procedures that 

financial institutions must follow when 

served with a garnishment order, there 

will be situations where a financial 

institution determines that it will not 

act on a garnishment order. Commenters 

asked whether the rule’s procedures 

must still be followed in these 

situations. One example provided by a 

commenter is when an account holder 

has more than one account and the first 

account review reveals (a) no protected 

amount and (b) sufficient funds to 

satisfy the judgment. In such situations, 

the financial institution’s obligation to 

garnish ends when the bank tenders 

over an amount to pay the debt. By 

logical extension, the commenter 

argued, the financial institution’s 

obligation to review the other account(s) 

in the account holder’s name also 

should end. However, the commenter 

pointed out that a literal reading of 

§ 212.5(f) (which requires a separate 

account review for each account in the 

name of an account holder against 

whom a garnishment order has been 

issued) arguably requires reviews of the 

other account(s) even when there is no 

remaining debt. A review of a second or 

third account could then lead to the 

presence of another ‘‘protected amount’’ 

(even though the garnishment has been 

satisfied) and thereby trigger the 

requirement to send another notice. 

Another example cited by a 

commenter postulated a situation in 

which a financial institution receives a 

garnishment order directed against the 

beneficiary of a ‘‘pay on death’’ or 

‘‘revocable trust’’ account. In this 

situation, the beneficiary has only a 

contingent interest in the account, the 

beneficiary’s name is not likely to be 

included on the account and the 

financial institution would not normally 

take action against the account based on 

the beneficiary’s contingent interest. A 

third example, provided by a financial 

institution trade group, would occur if 

a financial institution determines that a 

garnishment order cannot be given 

effect under State law because all of the 

funds in the account are protected from 

garnishment under State law (for 

example, where State law establishes a 

dollar amount that is protected). 

The Agencies agree that it serves no 

useful purpose to follow the rule’s 

procedures in situations where a 

financial institution has made a 

determination not to take any action 

affecting an account as the result of the 

receipt of a garnishment order. The first 

step required under the rule when a 

financial institution receives a 

garnishment order is to examine the 

order to determine if a Notice of Right 

to Garnish Federal Benefits is attached 

or included. The requirement to perform 

this first step, however, is prefaced by 

the words, ‘‘Prior to taking any other 

action related to a garnishment order 

issued against a debtor . . .’’ See 

§ 212.4(a). Accordingly, if a financial 

institution has determined not to take 

action related to a garnishment order, 

neither this step nor any subsequent 

requirement of the rule is triggered. The 

Agencies have published a set of 

frequently asked questions (FAQs) on 

the garnishment rule that states that if 

a financial institution will not be 

freezing or removing funds from an 

account in response to a garnishment 

order, then the financial institution 

should not perform an account review 

to determine if a protected amount 

should be established.6 In light of this 

guidance and the wording of § 212.4(a), 

the Agencies do not believe it is 

necessary to revise the rule itself on this 

point. 

Exception for Orders Obtained by State 

Child Support Enforcement Agencies or 

the United States (§ 212.4) 

One consumer advocacy organization 

opposed permitting any garnishment of 

exempt funds by the United States or a 

State Child Support Enforcement 

Agency. This commenter argued that an 

agency that is statutorily permitted to 

seize exempt Federal benefits should 

proceed through the Federal benefit 

offset program because the bank 

garnishment process is not well suited 

for such collections and should not be 

permitted. Several consumer advocacy 

organizations commented that the 

interim final rule’s exception allowing 

for the processing of child support 

orders issued by State child support 

agencies illegally and inappropriately 

permits the seizure of SSI payments and 

VA payments to pay child support 

obligations. Some organizations argued 

that the garnishment of these benefits 

for child support obligations is 

prohibited by 42 U.S.C. 659, a statute 

that permits garnishment orders to be 

served on the United States. Others 

commented that the rule should not 

provide the basis for garnishment of 

exempt Federal funds from bank 

accounts that cannot legally be offset 

directly from the Federal paying agency. 

Some commenters recommended that 

the Agencies incorporate in the rule the 

limitations that apply when child 

support arrearages are collected by 

offset directly from the Federal benefit 

agency, and ensure that these limits are 

applied to the garnishment of Federal 

funds from bank accounts. 

One commenter suggested that the 

Agencies establish a minimum amount 

to be protected in every bank account 

even from garnishment orders issued 

from State child support enforcement 

agencies. This commenter 

recommended that the final rule provide 

that for garnishment pursuant to child 

support orders, the protected amount 

would include the lesser of the sum of 

2 months’ exempt deposits or $750 (one 

twelfth of $9,000). The Agencies note, 

however, that although Federal benefit 

payments deposited to a bank account 

are protected by statute from 

garnishment for most debts, Federal and 

state law provides that this protection 

generally does not extend to 

garnishments for child support once 


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Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 32103 

7See Dear Colleague Letter 00–103 (Oct. 6, 2000) 

<http://www.acf.hhs.gov/programs/cse/pol/DCL/

2000/dcl-00-103.htm>. DHHS OCSE also provides 

public information regarding garnishment of VA 

payments for child support. See OCSE VA, Income 

Withholding and Veteran’s Benefits, Guides/ 

Publications/Reports (March 1, 2012) at http://www.

acf.hhs.gov/programs/css/resource/incomewithholding-and-veterans-benefits. 8See 42 U.S.C. 659(h)(1)(A)(ii)(V). 

these benefits have been deposited into 

a bank account, with exceptions for 

certain benefits. 

Another commenter suggested that 

the Agencies protect SSI payments from 

seizure for child support garnishment 

by adopting a procedure for financial 

institutions to follow when they receive 

a garnishment order from a State child 

support enforcement agency. That 

procedure would require financial 

institutions to examine every order that 

includes a ‘‘Notice of Right to Garnish 

Federal Benefits’’ to determine whether 

the order was obtained by a child 

support enforcement agency. For all 

such orders, the financial institution 

would have to conduct an account 

review to determine whether SSI 

payments were deposited to the account 

during the lookback period. To make it 

possible for financial institutions to 

identify SSI payments without manually 

reviewing the account history, financial 

institutions would have to make the 

programming changes necessary to 

detect the identifier for SSI payments 

located in positions 56–63 of the 

Company Entry Description field of the 

ACH Batch Header Record. 

The Agencies did not previously seek 

comment on imposing a process on 

banks to prevent the potential 

garnishment of SSI or VA payments by 

child support enforcement agencies, 

because they were aware of U.S. 

Department of Health and Human 

Services Office of Child Support 

Enforcement (DHHS OCSE) instructions 

that direct State child support 

enforcement agencies not to serve orders 

on financial institutions to garnish SSI 

payments and DHHS OCSE’s public 

information that VA payments are 

generally not subject to garnishment.7

DHHS OCSE has recently issued 

additional guidance to State child 

support enforcement agencies 

reiterating its policy that SSI payments 

are not to be garnished and urging state 

agencies to implement automated and 

manual processes to prevent improper 

garnishments. See Dear Colleague Letter 

[DCL–13–06] and Fact Sheet 

‘‘Garnishing Federal Benefits for Child 

Support.’’ 

The Agencies do not have information 

on the difficulty or burden that would 

be associated with manually reviewing 

every order that includes a Notice. The 

Agencies also do not have information 

on the costs to financial institutions of 

making programming changes necessary 

to identify SSI or VA payments 

delivered to an account. However, these 

procedures would seem to impose an 

additional burden on financial 

institutions. In light of this potential 

burden, the Agencies have sought to 

evaluate the extent to which the 

garnishment of SSI or VA payments by 

child support enforcement agencies 

presents a genuine hardship for 

noncustodial parents. 

After further consultation with DHHS 

OCSE, it does not appear that the 

garnishment of SSI or VA payments by 

child support enforcement agencies 

raises the same concerns that are raised 

by the garnishment of Federal benefits 

by commercial creditors. First, 

noncustodial parents receive substantial 

advance due process before a child 

support enforcement order is issued. 

This is in marked contrast to 

garnishment orders obtained by 

commercial creditors, where there is no 

advance due process and therefore no 

opportunity for the debtor to challenge 

the garnishment of benefit payments in 

a bank account until after the order has 

been executed. A noncustodial parent 

has the opportunity, before a child 

support enforcement order is issued, to 

notify the agency that the parent 

receives SSI or VA payments. Second, 

DHHS OCSE has instructed child 

support enforcement agencies not to 

serve orders on financial institutions to 

garnish SSI payments and has provided 

public information that VA payments 

generally are not subject to garnishment 

by child support enforcement agencies. 

Specifically, Federal payments subject 

to garnishment by child support 

enforcement agencies under 42 U.S.C. 

659 are limited to payments based on 

remuneration for employment, which 

do not include SSI payments or VA 

payments other than those representing 

compensation for a service-connected 

disability paid to a former member of 

the Armed Forces who is in receipt of 

retired or retainer pay and who has 

waived a portion of the retired or 

retainer pay in order to receive such 

compensation.8

Finally, if an account containing SSI 

or VA payments is garnished by a state 

child support enforcement agency, the 

noncustodial parent is not required to 

go to court to have the funds released 

and therefore does not necessarily face 

a time-consuming, expensive, and 

confusing process to free the funds. 

Rather, a noncustodial parent whose 

account is garnished for child support 

can contact the child support 

enforcement agency directly (usually by 

phone), explain that the account being 

garnished contains SSI or VA payments, 

and provide a copy of his or her SSI or 

VA payments statement in order to have 

the benefits released. 

In the notice of proposed rulemaking, 

the Agencies explained the need for the 

rule: 

Creditors and debt collectors are often able 

to obtain court orders garnishing funds in an 

individual’s account at a financial institution 

. . . Although state laws provide account 

owners with an opportunity to assert any 

rights, exemptions, and challenges to the 

garnishment order, including the exemptions 

under applicable Federal benefits laws, the 

freezing of funds during the time it takes to 

file and adjudicate such a claim can cause 

significant hardship for account owners . . . 

If their accounts are frozen, these individuals 

may find themselves without access to the 

funds in their account unless and until they 

contest the garnishment order in court, a 

process that can be confusing, protracted and 

expensive. 75 FR 20300. 

It was the significant hardship posed 

by this after-the-fact due process 

procedure that the rule is designed to 

eliminate. Because the child support 

enforcement process does not raise the 

same concerns, and in light of the 

burden for financial institutions that 

would be created by instituting a new 

and separate process for handling child 

support enforcement orders, the 

Agencies are not revising the exception 

in the rule allowing for the processing 

of orders from State child support 

enforcement agencies when the 

appropriate notice is attached to the 

order. The Agencies note that nothing in 

the rule restricts or prevents an 

individual who receives SSI payments, 

VA payments or any other Federal 

benefit payments from challenging in 

court the garnishment of those 

payments for child support obligations 

in the event a State child support 

enforcement agency does serve such a 

garnishment order on a financial 

institution. The Agencies further note 

that nothing in this rule restricts or 

prevents an individual from 

challenging, in court, any order of 

garnishment against a benefit payment. 

A State child support enforcement 

agency commented that the requirement 

to attach a Notice of Right to Garnish 

Federal Benefits places an additional 

and unnecessary compliance burden on 

States. The commenter also noted that 

as more States expand their electronic 

processing capabilities to include the 

transmission of documents, including 

garnishment orders/notices, the 

mandatory notice conflicts with the 

rationale for the electronic transmission 

of documents and serves to mitigate any 


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32104 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 

associated cost benefits. The commenter 

recommended the requirement to attach 

the notice be made optional, and that 

the Agencies set forth the content or 

prescribed language for the certification 

of the right to garnish benefits. States 

could then choose to use the model 

notice to be deemed compliant or to 

ensure that their garnishment notices/ 

orders contain the appropriate 

identifying language. 

The Agencies believe that it is 

important that financial institutions be 

able to quickly identify whether a 

garnishment order was obtained by a 

State child support enforcement agency, 

without searching through the order 

itself to locate verbiage. Moreover, the 

Agencies do not believe that the 

inclusion of the notice precludes the 

electronic transmission of a garnishment 

order. Accordingly, the Agencies are not 

revising the requirement that the notice 

be attached to an order obtained by a 

State child support enforcement agency 

for such an order to be excluded from 

the rule’s requirements. 

Account Review (§ 212.5) 

One commenter urged the Agencies 

not to allow 2 business days in which 

to examine orders for the inclusion of a 

Notice of Right to Garnish Federal 

Benefit Payment and (if not present) 

conduct an account review. The 

commenter observed that court orders 

generally require garnishments to be 

processed on the day of receipt, and that 

banks that delay account reviews, but 

then find no benefit payments, will 

violate court orders. Another 

commenter suggested that the Agencies 

define ‘‘business day’’ with a cross 

reference to an existing regulation, 

preferably Regulation CC. 

A trade association representing 

prepaid card providers commented that 

the 2 business day deadline for 

conducting the account review is 

unrealistic for financial institutions that 

issue prepaid cards because of the 

complexity in the administration of 

prepaid card programs. This commenter 

stated that financial institutions 

commonly support multiple prepaid 

card programs affiliated with a number 

of different programs and data 

processors, making the logistics of 

coordination more complex and timeconsuming than with a regular deposit 

account. According to the commenter, 

determining the protected funds in such 

cases will require communication with 

several third-party vendors in addition 

to coordination of the account review by 

bank personnel. The commenter 

suggested that 5 business days would be 

an appropriate deadline. 

A consumer advocacy organization 

commented that the Agencies should 

not exclude funds transferred from one 

account to another from the account 

review and the establishment of the 

protected amount if the benefit funds 

are transferred to special purpose 

savings accounts such as 529 plans and 

Individual Development Accounts. 

Based on the extensive comments 

received on the interim final rule 

regarding the time allowed for 

conducting the account review, the 

Agencies believe it is necessary to allow 

2 business days for financial institutions 

to identify orders subject to the rule and 

conduct account reviews, if required. It 

should be noted that financial 

institutions will not violate State law by 

utilizing the 2-day period, because the 

rule preempts any State requirement 

that an order be processed on the day 

of receipt. The Agencies understand that 

processing garnishment orders may 

involve more complexity in the context 

of prepaid card accounts, but believe 

that prepaid card holders who receive 

benefit payments on prepaid cards 

should have the same protection against 

improper garnishment orders as 

individuals whose benefit payments are 

directly deposited to conventional bank 

accounts. Accordingly, the Agencies are 

not extending the time period permitted 

for the account review for prepaid card 

accounts. 

The Agencies are retaining in 

§ 212.5(f) of the final rule the provision 

that funds transferred from one account 

to another are excluded from the 

account review and the establishment of 

the protected amount. Although the 

Agencies understand that exempt funds 

may be transferred to a special savings 

or other account following the initial 

deposit, requiring the examination of all 

account transfers after a Federal benefit 

payment has been identified would 

impose a significant burden on financial 

institutions, since they would not be 

able to rely on a transaction indicator, 

like the ACH identifier, in searching 

account histories to determine whether 

transferred funds should be classified as 

exempt. Moreover, the Agencies note 

that nothing in the rule restricts or 

prevents an individual from asserting 

that the benefit retained its exempt 

character and, thus, was not subject to 

garnishment. 

Access to Account (§ 212.6) 

One commenter suggested that the 

Agencies ensure that the requirement to 

provide ‘‘full and customary’’ access to 

an account containing a protected 

amount is not abused by explicitly 

stating that financial institutions are 

prohibited from closing such accounts. 

Another commenter requested guidance 

on the ‘‘full and customary access’’ 

requirement in States where a 

continuing garnishment order is served, 

requiring that any deposits into the 

account before the date on which the 

garnishment order expires (the ‘‘return 

date’’) be garnished and any 

withdrawals before the return date be 

prevented. The commenter explained 

that there could be situations, in States 

that allow continuing garnishments, in 

which a protected amount is established 

for an account, but another account held 

by the account holder containing no 

protected amount would be subject to a 

continuing freeze. The commenter 

stated that it is customary for financial 

institutions to temporarily suspend the 

use of a debit card on all accounts 

connected to that debit card and that 

financial institutions cannot apply this 

suspension on an account-by-account 

basis. The commenter asked how a 

financial institution could comply with 

the requirement to freeze the second 

account while still allowing ‘‘full and 

customary access’’ to the account 

containing the protected amount. 

The final rule does not address the 

conditions under which financial 

institutions may close accounts, which 

the Agencies believe is beyond the 

scope of this rule. The Agencies have 

conducted research into the ability of 

financial institutions to suspend debit 

card access to one account held by an 

account holder while enabling debit 

card access to another account. It 

appears that many financial institutions 

have the capability to do so. Moreover, 

the number of States in which this issue 

might arise is very small, since most 

States do not provide for continuing 

garnishments. The Agencies indicated 

in the preamble to the interim final rule 

that the requirement to provide the 

account holder with ‘‘full and 

customary’’ access to the protected 

amount was intended to ensure that 

after a garnishment order is received, 

the account holder continues to have 

the same degree of access to the 

protected funds that was provided prior 

to the receipt of the order. The 

Agencies’ view is that where an account 

holder had debit card access to an 

account prior to the receipt of a 

garnishment order, the requirement to 

provide full and customary access to the 

protected amount means that the 

account holder should have debit card 

access to that amount. 

Same Versus New or Different 

Garnishment Order (§ 212.6(f)) 

Some commenters requested 

clarification on when a garnishment 

order constitutes a new or different 


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9See www.fms.treas.gov/greenbook/FAQs-May12-trsy-ver1.pdf. 

order as opposed to the same order. In 

some States, financial institutions are 

served with recurring, short-term 

continuing garnishments. These 

garnishments are customarily re-issued 

after the date on which they expire (the 

‘‘return date’’). The reissued 

garnishment pertains to the same matter 

and the same parties and is procedurally 

required to continue to pursue 

collection of a judgment. The 

garnishment would have the same case 

number but be filed under a different 

execution number. Commenters 

questioned whether a garnishment order 

that is re-issued after its return date 

would be considered the ‘‘same’’ or a 

‘‘new’’ garnishment order. 

The Agencies have published a FAQ 

stating that a ‘‘new’’ garnishment order 

means that the creditor has gone back to 

court and obtained a new order, as 

opposed to re-filing an order that was 

previously served.9 The FAQ indicated 

that, in the case of an order from a State 

child support enforcement agency, a 

new order would be an order that is not 

simply the re-delivery of the same order. 

The Agencies’ view is that a 

garnishment order that is re-issued after 

the return date, under a different 

execution number, would not constitute 

a ‘‘new’’ garnishment order. 

Garnishment Fee (§ 212.6(h)) 

A number of financial institutions and 

their trade associations commented that 

financial institutions should be allowed 

to assess reasonable garnishment fees 

whether or not an account has excess 

funds beyond any protected amounts, 

and even if imposing the fee would 

create an overdraft in the account. 

Several commenters asserted that costs 

to financial institutions of processing 

garnishment orders will increase as a 

result of the rule and that in light of the 

fee restrictions imposed by the rule, 

banks may decide to close accounts. 

Financial institutions asserted that 

garnishment order processing and 

compliance is a very time-consuming 

and often complex process and that it is 

unreasonable for financial institutions, 

which are generally not a party to the 

dispute between the creditor and the 

debtor, not to be compensated for the 

expenses and liabilities they incur. 

Expenses cited by financial institutions 

in processing garnishment orders 

include salaries and benefits for staff 

receiving and logging garnishment 

orders, performing account searches, 

conducting account reviews, identifying 

and calculating available and protected 

funds, placing hold orders, processing 

remittances, mailing and filing notices 

and documentation, and handling 

inquiries from depositors and creditors, 

as well as legal and compliance support 

staff. Financial institutions argued that 

without the ability to charge the 

customer a fee each time an account 

review commences, the financial 

institution will be forced to recoup costs 

against all customers, creating 

unfairness to both the financial 

institution and the financial 

institution’s other customers. 

These commenters requested that the 

rule be revised to allow financial 

institutions to assess reasonable 

garnishment fees even in instances 

where the fee must be collected either 

partially or fully from protected 

amounts. They also requested that the 

Agencies revise the prohibition in 

§ 212.6(g) against charging or collecting 

a garnishment fee after the date of the 

account review. In addition, a financial 

institution trade association requested 

that the final rule clarify that 

garnishment fee limitations do not 

apply to attorney’s fees assessed by a 

court, and that such attorney’s fees can 

be recovered from future nonprotected 

balances. 

In contrast, a consumer advocacy 

group commented that the prohibition 

on charging a garnishment fee against a 

protected amount or charging a 

garnishment fee after the date of the 

account review should be extended to 

protect funds from any other fees 

triggered by the garnishment order. 

Another commenter proposed that the 

Agencies require the creditor to pay the 

garnishment fee charged by the financial 

institution upon filing the legal 

document and then have the creditor 

add this fee to the amount owed to the 

creditor by the debtor. 

One commenter asked for clarification 

on whether the rule prohibits charging 

a garnishment fee in the following 

scenario: a customer has multiple 

separate accounts or subaccounts, only 

one of which receives electronic Federal 

benefit payments. The other accounts 

are not subject to the rule. The 

commenter asked if the financial 

institution could collect an agreed upon 

garnishment fee from accounts not 

subject to the rule. The commenter also 

asked if a financial institution could 

collect a garnishment fee from an 

account that is not subject to the 

regulation after the account review by 

taking that account balance negative. 

The Agencies continue to believe that 

financial institutions should not be 

permitted to collect a fee from the 

protected amount and are not amending 

that provision of the rule. The Agencies 

are not expanding the prohibition on 

garnishment fees to encompass ‘‘any fee 

that arises as a result of a garnishment,’’ 

because such a definition would be 

overly broad. However, in light of the 

comments received, the Agencies have 

decided to amend the rule to provide 

financial institutions with an 

opportunity, for 5 days following the 

account review, to impose a 

garnishment fee in the event that 

nonprotected funds become available 

following the account review. 

The Agencies stated in the preamble 

to the interim final rule that the 

prohibition on charging a garnishment 

fee after the date of account review was 

necessary because otherwise the rule 

would need to prescribe procedures that 

financial institutions would follow to 

monitor accounts in real time to track 

deposits and withdrawals, determine 

whether new deposits are exempt or 

not, and determine whether a 

garnishment fee could be imposed. In 

light of the comments received from 

financial institutions, the Agencies have 

decided to establish a procedure that 

financial institutions may follow, if they 

choose, for a limited time following the 

account review to determine whether 

nonprotected funds are available to 

support the imposition of a garnishment 

fee. If funds other than a benefit 

payment are deposited to an account 

during the 5 business days following the 

date of the account review, the financial 

institution may charge or collect a fee 

from the additional funds. In order to 

impose such a fee, a financial institution 

could choose to check the account at 

any time during the 5 days after the 

account review to determine if funds 

other than benefit payments were 

deposited. 

In response to the question as to 

whether a garnishment fee may be 

collected from accounts that do not 

contain a protected amount, the 

Agencies emphasize that such accounts 

are not subject to any restrictions under 

this rule, and that a financial institution 

may collect an agreed upon garnishment 

fee from such accounts in accordance 

with the customer agreement and any 

applicable laws. 

Notice to Account Holder (§ 212.7) 

A number of comments were received 

regarding the form, contents and means 

of delivery of the notice that must be 

provided to account holders. One 

commenter stated that financial 

institutions should not be required to 

provide a notice to the account holder 

and that it would be appropriate to put 

this burden on the party issuing the 

garnishment order. Other commenters 

urged the Agencies to revise the rule to 

require a notice to an account holder 


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32106 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 

only in cases where there are funds in 

the account in excess of the protected 

amount. The interim final rule requires 

that a financial institution send a notice 

to the account holder if the balance in 

the account on the date of the account 

review is above zero dollars and the 

financial institution establishes a 

protected amount. A number of 

financial institutions noted that this 

requirement means that a financial 

institution must notify an account 

holder when a garnishment order is 

received for an account into which 

exempt benefit payments have been 

electronically deposited during the 

lookback period even in cases where no 

account funds are frozen. Financial 

institutions commented that providing a 

notice in this situation is of no benefit 

to account holders and will result in 

unnecessary confusion to account 

holders, many of whom will be unlikely 

to read the entire notice and will 

erroneously believe that their entire 

account balance has been frozen. These 

commenters stated that financial 

institutions will incur the expense of 

preparing and mailing garnishment 

notices for accounts in which no funds 

will be turned over to a creditor, as well 

as for responding to inquiries from 

account holders confused by the 

notices. 

One commenter recommended that 

financial institutions be permitted to 

mail the notice to the customer’s 

address according to its records. Other 

commenters stated that it is unclear 

whether a bank is prohibited from 

sending notice to joint account holders. 

Financial institutions commented that 

they typically send notices regarding a 

joint account to all the account holders 

and that requiring that a garnishment 

order be sent solely to the person named 

in the order would require them to 

change their processes and would result 

in information not being communicated 

that the account holder likely would 

find important. In some States, 

according to commenters, State law 

requires banks to notify all account 

holders of a garnishment order that has 

been received and to send a copy of it 

to the account holders. Commenters 

therefore requested that the Agencies 

add a sentence at the end of § 212.7(e) 

in the final rule that states that a bank 

may follow its normal practice of 

communicating with joint account 

holders when sending a garnishment 

notice. They also requested that a 

conforming change be made to the 

model notice that indicates that the 

recipient of the notice may be receiving 

it because he or she is a joint holder of 

an account that has been garnished. 

One financial institution trade group 

noted that § 212.7(e), which addresses 

delivery of the notice to the account 

holder, says only that a financial 

institution shall ‘‘issue’’ the notice 

directly to the account holder. This 

trade group stated that electronic 

notices can be provided promptly and 

securely and help banks to avoid 

unnecessary compliance costs, and 

requested that the Agencies allow a 

financial institution to issue a notice, or 

make a notice available, electronically, 

through an email or a proprietary Web 

site in instances where an account 

holder has consented to electronic 

communication. 

The same commenter requested that 

the Agencies permit a bank to use either 

the model notice or an alternative 

version that provides the same 

information but in a more streamlined 

way. As proposed by the commenter, 

the alternative notice would have a copy 

of the garnishment order attached and 

would refer back to the order in places 

where the model notice requires 

information to be added that is unique 

to the garnishment in question. 

With regard to the requirement that 

contact information for the creditor be 

included in the notice, a commenter 

noted that generally garnishments 

served on our clients arrive with limited 

information about the creditor, but full 

contact information for the attorney for 

the creditor. The commenter questioned 

whether financial institutions should 

include, in lieu of limited information 

on the creditor, the full information to 

contact the attorney for the creditor. 

Another commenter recommended that 

the list of protected payments be 

removed from the model notice because 

the list must be updated continuously. 

The Agencies agree that the 

requirement to send a notice to account 

holders in cases where there are no 

funds in excess of the protected amount 

may be of little benefit and is likely to 

result in unnecessary confusion for 

some account holders. Accordingly, the 

Agencies are revising the rule to require 

a notice to an account holder only in 

cases where there are funds in the 

account in excess of the protected 

amount. With regard to the delivery of 

notices, the Agencies believe it is 

acceptable for financial institutions to 

mail the notice to the address of record, 

and do not believe that anything in the 

rule suggests otherwise. In the case of 

joint accounts affected by a garnishment 

order, financial institutions may deliver 

the notice to both account holders, but 

there is no obligation to do so. The 

Agencies do not believe it is necessary 

to amend the rule to state specifically 

that a bank may follow its normal 

practice of communicating with joint 

account holders when sending a 

garnishment notice. In such a case, the 

financial institution may indicate in its 

notice that the recipient of the notice 

may be receiving it because he or she is 

a joint holder of an account that has 

been garnished. The rule does not 

specify the means of delivery of the 

notice, so that any method of delivery 

for notices agreed to between the 

financial institution and the account 

holder, including electronic delivery, 

would be acceptable. 

The Agencies are not creating an 

alternative to the model notice. 

Financial institutions are not required to 

use the model notice and may create 

their own alternative notices. In cases 

where a financial institution receives a 

garnishment order with limited 

information about the creditor, but full 

contact information for the creditor’s 

attorney, the Agencies’ view is that the 

financial institution may include, in 

lieu of limited information on the 

creditor, the full information to contact 

the attorney for the creditor. 

The Agencies are not removing the 

list of protected payments from the 

notice because this information is likely 

to be helpful to account holders. The 

payments included in the list have been 

protected from garnishment by Federal 

statutes for many years and there is no 

reason to anticipate a change in these 

statutes. 

Preemption of State Law (§ 212.9) 

Some financial institutions expressed 

confusion over the interplay of the rule 

with State law and questioned how the 

preemption of State law would work in 

certain situations. One commenter 

posed a scenario in which State law 

treats a joint account held by two 

spouses as being held in tenancy by the 

entirety, and protects the account from 

garnishment unless the garnishment 

order is in both spouses’ names. The 

commenter pointed out that where a 

garnishment order naming just one 

spouse is served on the financial 

institution, and protected benefit 

payments are deposited to the account, 

the rule would require that an account 

review be performed and a protected 

amount established. However, under 

State law, the account would not be 

subject to garnishment at all. The 

commenter questioned the interplay 

between the rule and State law in this 

scenario. Another commenter 

questioned whether, when protected 

benefit payments are deposited to an 

account, the rule is to be applied 

exclusively, or whether the rule is to be 

applied to determine a protected 

amount followed by the application of 


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a more protective State law to funds 

exceeding the protected amount in the 

same account. 

A financial institution trade group 

suggested that the Agencies provide 

guidance on how the rule operates in 

the context of a specific State law by 

maintaining an ‘‘evergreen’’ set of FAQs 

that are updated as issues are raised. 

One credit union association 

commented that it conceptually opposes 

the rule in its entirety with specific note 

to the ‘‘continuing garnishment’’ 

provision at § 212.6(g) and argued that 

§ 212.6(g) is both a logically 

unpermitted exercise of authority and 

unconstitutional. 

As discussed above (See Initial action 

upon receipt of a garnishment order 

(§ 212.4)), the rule’s requirements 

presuppose that a financial institution 

would give effect to a garnishment 

order. It serves no useful purpose to 

follow the rule’s procedures in 

situations where a financial institution 

has made a determination not to take 

any action against an account on the 

basis of a garnishment order. 

Accordingly, if a financial institution 

will not act on a garnishment order due 

to the operation of State law, the 

financial institution need not examine 

the order to determine if a Notice of 

Right to Garnish Federal Benefits is 

attached or included or take any of the 

additional steps required under the rule. 

The Agencies intend to maintain the 

FAQs that have been published as an 

‘‘evergreen’’ document, meaning that 

they will be updated as appropriate. 

However, the Agencies do not intend to 

routinely address preemption questions 

within the FAQs. 

The Agencies do not agree that the 

‘‘continuing garnishment’’ provision at 

§ 212.6(g) is an unconstitutional 

exercise of authority. As discussed in 

the preamble to the interim final rule, 

the rule’s treatment of continuing 

garnishments is necessary to give proper 

effect to the anti-garnishment statutes 

that the rule is implementing, since it is 

not possible to implement both a 

protected amount and give effect to 

continuing actions related to a 

garnishment order. See 76 FR 9946. 

Record Keeping (§ 212.11) 

A State banker’s association 

commented that some banks would like 

more specificity as to what the record 

keeping requirement encompasses. This 

commenter suggested that the Agencies 

create a ‘‘job aid’’ for financial 

institutions that would make it clear 

what documentation a financial 

institution is required to maintain for 2 

years. The Agencies believe that it is up 

to financial institutions to decide what 

documentation to retain, and that the 

appropriate documentation may vary 

depending on the circumstances of each 

situation. 

Other Comments 

Garnishment of Fraudulently Obtained 

Benefit Payments 

A banking trade group commented 

that benefit payments should not be 

protected from garnishment where the 

garnishment order is for the purpose of 

recouping fraudulently obtained 

benefits. This commenter suggested that 

the Agencies address this scenario in 

the rule by creating an exception in the 

rule that would require financial 

institutions to give effect to an order 

that states on its face that benefit 

payments were obtained fraudulently, 

without regard to the protection from 

garnishment that otherwise would apply 

to properly-obtained benefit payments. 

The Agencies do not believe that 

financial institutions should be required 

to read and make judgments on the basis 

for, and merits of, garnishment orders, 

and have structured the rule 

accordingly. In the case of garnishment 

orders to recover fraudulently issued 

Federal benefits, such benefits will 

typically be recovered in an action by 

the United States, which can attach a 

Notice of Right to Garnish Federal 

Benefits, if applicable. 

Effective Date 

A bank trade association 

recommended that the effective date of 

the final rule be delayed for 6 to 12 

months following its publication, stating 

that it would take that long for most 

community banks to be able to 

implement the necessary systems 

programming and testing required to 

automate the detection of the unique 

ACH identifiers. A financial institution 

questioned whether the rule applies to 

continuing court orders already in place 

prior to May 1, 2011 or whether a Notice 

of Right to Garnish Federal Benefits 

must be provided in order for the 

financial institution to continue to 

honor such orders. 

The interim final rule has been in 

effect since May 1, 2011, and the 

Agencies understand that financial 

institutions generally began 

implementing the rule’s requirements as 

of that date. The amendments to the 

interim final rule in this rulemaking 

should not change or complicate 

compliance, and the Agencies therefore 

are not delaying the effective date of the 

final rule beyond the 30 days prescribed 

by the Administrative Procedure Act (5 

U.S.C. 553(d)). The rule does not, 

however, apply retroactively to orders, 

including continuing orders, that were 

in place prior to the May 1, 2011 

effective date. 

FAQs 

One commenter requested that the 

FAQs either be incorporated directly 

into the rule or attached as an appendix. 

The Agencies believe it would be 

cumbersome, and unnecessary, to 

amend the regulation to codify the 

informal interpretive guidance included 

in the FAQs. The Agencies anticipate 

that they may modify or add to the 

FAQs to clarify issues that may be 

raised in the future. Codifying the FAQs 

in the rule would preclude the Agencies 

from amending the FAQs without going 

through a notice-and-comment 

rulemaking process. 

III. Section-by-Section Analysis 

Section 212.3 

The definition of ‘‘benefit payment’’ is 

revised to mean a direct deposit 

payment that includes not only an ‘‘XX’’ 

in positions 54 and 55 of the Company 

Entry Description field, but also the 

number ‘‘2’’ encoded in the Originator 

Status Code field of the Batch Header 

Record of the direct deposit entry. 

The definition of ‘‘garnishment order’’ 

and ‘‘order’’ is revised to include a levy, 

and also to include orders issued by 

States and municipalities, as well as 

orders to freeze assets. 

The definition of ‘‘protected amount’’ 

is revised to refer to the balance in an 

account when the account review is 

performed. 

Section 212.6 

Section 212.6(h) is revised to provide 

an exception to the prohibition against 

charging or collecting a garnishment fee 

after the date of account review, i.e., 

retroactively. Under the exception, if 

funds other than a benefit payment are 

deposited to the account at any time 

within 5 business days following the 

date of the account review, the financial 

institution may charge or collect a fee 

from the additional funds. 

Section 212.7 

Section 212.7 is revised to require that 

the financial institution send a notice to 

an account holder only where financial 

institution has established a protected 

amount and there are funds in the 

account in excess of the protected 

amount. 

Appendix C to Part 212 

The examples demonstrating how the 

protected amount is calculated have 

been revised to reflect the use of the 

account balance when the account 

review is performed rather than the 


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opening balance in the account on the 

day of the account review. 

IV. Regulatory Analysis 

A. Executive Order 12866, and 

Executive Order 13563 

Executive Orders 13563 and 12866 

direct agencies to assess costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule 

has been designated a ‘‘significant 

regulatory action’’ although not 

economically significant, under section 

3(f) of Executive Order 12866. 

Accordingly, the rule has been reviewed 

by the Office of Management and 

Budget. 

B. Regulatory Flexibility Act 

In the proposed rule, the Agencies 

prepared a joint Initial Regulatory 

Flexibility Analysis and requested 

comment on the proposed rule’s impact 

on small entities. Based on the 

Agencies’ analysis of the comments on 

the proposed rule and based on a survey 

of small credit unions conducted by the 

Treasury, the Agencies certified that the 

interim final rule would not have a 

significant economic impact on a 

substantial number of small entities. 

One credit union, one bank and one 

credit union association commented 

that in their opinion the interim final 

rule does impose a burden, that the 

burden on financial institutions will 

likely be more significant than the 

Agencies believe, and that the burden 

will be more significant for small 

institutions. One of these commenters 

stated that it will take hours of 

manpower and some system 

reprogramming to meet the rule’s 

requirements. Another commenter 

stated that smaller credit unions may 

not find it cost effective to upgrade their 

systems in order to automate the 

measurement of the lookback period 

and the performance of the account 

review in light of the small number of 

garnishment orders they receive. This 

commenter stated that although the time 

required to conduct an account review 

may be minimal, time spent reviewing 

the account is necessarily time the 

employee cannot spend working on his 

or her day-to-day responsibilities. None 

of the commenters provided any 

estimates of costs. 

Some of the changes that the Agencies 

are adopting in the final rule will reduce 

the costs and burden of complying with 

the rule’s requirements. Financial 

institutions will have an additional 

opportunity to charge a garnishment fee, 

and thereby recoup some costs, because 

the rule allows a fee to be charged 

against any nonprotected amounts 

deposited to an account within 5 

business days following the account 

review. In addition, financial 

institutions will not be required to send 

a notice to an account holder unless 

there are funds in the account in excess 

of the protected amount. In light of 

these changes and for the reasons 

discussed in the interim final 

rulemaking, the Agencies certify that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities, in accordance 

with 5 U.S.C. 605(b). 

C. Executive Order 13132 Determination 

Executive Order 13132 outlines 

fundamental principles of Federalism, 

and requires the adherence to specific 

criteria by Federal agencies in the 

process of their formulation and 

implementation of policies that have 

‘‘substantial direct effects’’ on the 

States, the relationship between the 

national government and States, or on 

the distribution of power and 

responsibilities among the various 

levels of government. Federal agencies 

promulgating regulations that have 

these Federalism implications must 

consult with State and local officials, 

and describe the extent of their 

consultation and the nature of the 

concerns of State and local officials in 

the preamble to the regulation. 

In the Agencies’ view, nothing in this 

final rule affects the Federalism 

implications already considered in the 

promulgation of the interim final rule. 

The Agencies stated, when 

promulgating the interim final rule, that 

the rule may have Federalism 

implications, because it has direct, 

although not substantial, effects on the 

States, the relationship between the 

national government and States, or on 

the distribution of power and 

responsibilities among various levels of 

government. The provision in the rule 

(§ 212.5) that establishes a process for 

financial institutions’ treatment of 

accounts upon the receipt of a 

garnishment order could potentially 

conflict with State garnishment laws 

prescribing a formula for financial 

institutions to pay such claims. 

The rule’s central provision requiring 

a financial institution to establish a 

protected amount will affect only a very 

small percentage of all garnishment 

orders issued by State courts, since in 

the vast majority of cases an account 

will not contain an exempt Federal 

benefit payment. Moreover, States may 

choose to provide stronger protections 

against garnishment, and the regulation 

will only override State law to the 

minimum extent necessary to protect 

Federal benefits payments from 

garnishment. 

Under 42 U.S.C. 407(a) and 42 U.S.C. 

1383(d)(1), Federal Old-Age, Survivors, 

and Disability Insurance benefits and 

Supplemental Security Income 

payments are generally exempt from 

garnishment. 42 U.S.C. 405(a) provides 

the Commissioner of Social Security 

with the authority to make rules and 

regulations concerning Federal Old-Age, 

Survivors, and Disability Insurance 

benefits. The Social Security Act does 

not require State law to apply in the 

event of conflict between State and 

Federal law. 

Under 38 U.S.C. 5301(a), benefits 

administered by VA are generally 

exempt from garnishment. 38 U.S.C. 

501(a) provides the Secretary of 

Veterans Affairs with the authority to 

make rules and regulations concerning 

VA benefits. The statutes governing VA 

benefits do not require State law to 

apply in the event of conflict between 

State and Federal law. 

Under 45 U.S.C. 231m(a), Federal 

railroad retirement benefits are 

generally exempt from garnishment. 45 

U.S.C. 231f(b)(5) provides the RRB with 

rulemaking authority over issues rising 

from the administration of Federal 

Railroad retirement benefits. The 

Railroad Retirement Act of 1974 does 

not require State law to apply in the 

event of conflict between State and 

Federal law. 

Under 45 U.S.C. 352(e), Federal 

railroad unemployment and sickness 

benefits are generally exempt from 

garnishment. 45 U.S.C. 362(1) provides 

the RRB with rulemaking authority over 

issues rising from the administration of 

Federal railroad unemployment and 

sickness benefits. The Railroad 

Unemployment Insurance Act does not 

require State law to apply in the event 

of a conflict between State and Federal 

law. 

Under 5 U.S.C. 8346, for the Civil 

Service Retirement System (CSRS) and 

under 5 U.S.C. 8470, for the Federal 

Employees Retirement Systems (FERS), 

Federal retirement benefits are generally 

exempt from garnishment. 5 U.S.C. 8347 

and 5 U.S.C. 8461, respectively, provide 

the Director of OPM with the authority 

to make rules and regulations 

concerning CSRS and FERS benefits. 


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Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 32109 

OPM benefits statutes do not require 

State law to apply in the event of 

conflict between State and Federal law. 

In accordance with the principles of 

Federalism outlined in Executive Order 

13132, the Agencies consulted with 

State officials on issues addressed in the 

interim final rule. Specifically, the 

Agencies sought perspective on those 

matters where Federalism implications 

could potentially conflict with State 

garnishment laws. The final rule does 

not present new Federalism 

implications that have not already been 

considered during the promulgation of 

the interim final rule. 

D. Unfunded Mandates Reform Act of 

1995 Determinations 

Section 202 of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4 (Unfunded Mandates Act) 

requires that an agency prepare a 

budgetary impact statement before 

promulgating a rule that includes a 

Federal mandate that may result in 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any 1 year. If a budgetary impact 

statement is required, section 205 of the 

Unfunded Mandates Act also requires 

an agency to identify and consider a 

reasonable number of regulatory 

alternatives before promulgating a rule. 

The Agencies have determined that this 

rule will not result in expenditures by 

State, local, and tribal governments, or 

by the private sector, of $100 million or 

more. Accordingly, the Agencies have 

not prepared a budgetary impact 

statement or specifically addressed the 

regulatory alternatives considered. 

List of Subjects in 31 CFR Part 212 

Benefit payments, Exempt payments, 

Financial institutions, Garnishment, 

Preemption, Recordkeeping. 

Department of the Treasury, Fiscal 

Service (Treasury) 

Authority and Issuance 

Accordingly, the interim final rule 

which was published at 76 FR 9939 on 

February 23, 2011, is adopted as a final 

rule with the following changes: 

PART 212—GARNISHMENT OF 

ACCOUNTS CONTAINING FEDERAL 

BENEFIT PAYMENTS 

■ 1. The authority citation for part 212 

continues to read as follows: 

Authority: 5 U.S.C. 8346; 5 U.S.C. 8470; 

5 U.S.C. 1103; 31 U.S.C. 321; 31 U.S.C. 3321; 

31 U.S.C. 3332; 38 U.S.C. 5301(a); 38 U.S.C. 

501(a); 42 U.S.C. 405(a); 42 U.S.C. 407; 42 

U.S.C. 659; 42 U.S.C. 1383(d)(1); 45 U.S.C. 

231f(b); 45 U.S.C. 231m; 45 U.S.C. 352(e); 45 

U.S.C. 362(1). 

■ 2. In § 212.3, revise the definitions of 

Benefit payment, Garnishment order or 

order, and Protected amount to read as 

follows: 

§ 212.3 Definitions. 

* * * * * 

Benefit payment means a Federal 

benefit payment referred to in § 212.2(b) 

paid by direct deposit to an account 

with the character ‘‘XX’’ encoded in 

positions 54 and 55 of the Company 

Entry Description field and the number 

‘‘2’’ encoded in the Originator Status 

Code field of the Batch Header Record 

of the direct deposit entry. 

* * * * * 

Garnishment order or order means a 

writ, order, notice, summons, judgment, 

levy or similar written instruction 

issued by a court, a State or State 

agency, a municipality or municipal 

corporation, or a State child support 

enforcement agency, including a lien 

arising by operation of law for overdue 

child support or an order to freeze the 

assets in an account, to effect a 

garnishment against a debtor. 

* * * * * 

Protected amount means the lesser of 

the sum of all benefit payments posted 

to an account between the close of 

business on the beginning date of the 

lookback period and the open of 

business on the ending date of the 

lookback period, or the balance in an 

account when the account review is 

performed. Examples illustrating the 

application of this definition are 

included in Appendix C to this part. 

* * * * * 

■ 3. Revise § 212.6(h), to read as 

follows: 

§ 212.6 Rules and procedures to protect 

benefits. 

* * * * * 

(h) Impermissible garnishment fee. 

The financial institution may not charge 

or collect a garnishment fee against a 

protected amount. The financial 

institution may charge or collect a 

garnishment fee up to five business days 

after the account review if funds other 

than a benefit payment are deposited to 

the account within this period, provided 

that the fee may not exceed the amount 

of the non-benefit deposited funds. 

■ 4. In § 212.7, revise the introductory 

text and paragraph (a), to read as 

follows: 

§ 212.7 Notice to the account holder. 

A financial institution shall issue the 

notice required by § 212.6(e) in 

accordance with the following 

provisions. 

(a) Notice requirement. The financial 

institution shall send the notice in cases 

where: 

(1) A benefit agency deposited a 

benefit payment into an account during 

the lookback period; 

(2) The balance in the account on the 

date of account review was above zero 

dollars and the financial institution 

established a protected amount; and 

(3) There are funds in the account in 

excess of the protected amount. 

* * * * * 

■ 5. In Appendix C to part 212, revise 

the examples of the definition of 

protected amount to read as follows: 

Appendix C to Part 212—Examples of 

the Lookback Period and Protected 

Amount 

* * * * * 

The following examples illustrate the 

definition of protected amount. 

Example 1: Account balance less than sum 

of benefit payments. 

A financial institution receives a 

garnishment order against an account holder 

for $2,000 on May 20. The date of account 

review is the same day, May 20, and the 

balance in the account when the review is 

performed is $1,000. The lookback period 

begins on May 19, the date preceding the 

date of account review, and ends on March 

19, the corresponding date two months 

earlier. The account review shows that two 

Federal benefit payments were deposited to 

the account during the lookback period 

totaling $2,500, one for $1,250 on Friday, 

April 30 and one for $1,250 on Tuesday, 

April 1. Since the $1,000 balance in the 

account when the account review is 

performed is less than the $2,500 sum of 

benefit payments posted to the account 

during the lookback period, the financial 

institution establishes the protected amount 

at $1,000. The financial institution is not 

required to send a notice to the account 

holder. 

Example 2: Three benefit payments during 

lookback period. 

A financial institution receives a 

garnishment order against an account holder 

for $8,000 on December 2. The date of 

account review is the same day, December 2, 

and the balance in the account when the 

account review is performed is $5,000. The 

lookback period begins on December 1, the 

date preceding the date of account review, 

and ends on October 1, the corresponding 

date two months earlier. The account review 

shows that three Federal benefit payments 

were deposited to the account during the 

lookback period totaling $4,500, one for 

$1,500 on December 1, another for $1,500 on 

November 1, and a third for $1,500 on 

October 1. Since the $4,500 sum of the three 

benefit payments posted to the account 

during the lookback period is less than the 

$5,000 balance in the account when the 

account review is performed, the financial 

institution establishes the protected amount 


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32110 Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations 

at $4,500 and seizes the remaining $500 in 

the account consistent with State law. The 

financial institution is required to send a 

notice to the account holder. 

Example 3: Intraday transactions. 

A financial institution receives a 

garnishment order against an account holder 

for $4,000 on Friday, September 10. The date 

of account review is Monday, September 13, 

when the opening balance in the account is 

$6,000. A cash withdrawal for $1,000 is 

processed after the open of business on 

September 13, but before the financial 

institution has performed the account review, 

so that the balance in the account is $5,000 

when the financial institution initiates an 

automated program to conduct the account 

review. The lookback period begins on 

Sunday, September 12, the date preceding 

the date of account review, and ends on 

Monday, July 12, the corresponding date two 

months earlier. The account review shows 

that two Federal benefit payments were 

deposited to the account during the lookback 

period totaling $3,000, one for $1,500 on 

Wednesday, July 21, and the other for $1,500 

on Wednesday, August 18. Since the $3,000 

sum of the two benefit payments posted to 

the account during the lookback period is 

less than the $5,000 balance in the account 

when the account review is performed, the 

financial institution establishes the protected 

amount at $3,000 and, consistent with State 

law, freezes the $2,000 remaining in the 

account after the cash withdrawal. The 

financial institution is required to send a 

notice to the account holder. 

Example 4: Benefit payment on date of 

account review. 

A financial institution receives a 

garnishment order against an account holder 

for $5,000 on Thursday, July 1. The date of 

account review is the same day, July 1, when 

the opening balance in the account is $3,000, 

and reflects a Federal benefit payment of 

$1,000 posted that day. The lookback period 

begins on Wednesday, June 30, the date 

preceding the date of account review, and 

ends on Friday, April 30, the corresponding 

date two months earlier. The account review 

shows that two Federal benefit payments 

were deposited to the account during the 

lookback period totaling $2,000, one for 

$1,000 on Friday, April 30 and one for $1,000 

on Tuesday, June 1. Since the $2,000 sum of 

the two benefit payments posted to the 

account during the lookback period is less 

than the $3,000 balance in the account when 

the account review is performed, the 

financial institution establishes the protected 

amount at $2,000 and places a hold on the 

remaining $1,000 in the account in 

accordance with State law. The financial 

institution is required to send a notice to the 

account holder. 

Example 5: Account co-owners with 

benefit payments. 

A financial institution receives a 

garnishment order against an account holder 

for $3,800 on March 22. The date of account 

review is the same day, March 22, and the 

balance in the account is $7,000. The 

lookback period begins on March 21, the date 

preceding the date of account review, and 

ends on January 21, the corresponding date 

two months earlier. The account review 

shows that four Federal benefit payments 

were deposited to the account during the 

lookback period totaling $7,000. Two of these 

benefit payments, totaling $3,000, were made 

to the account holder against whom the 

garnishment order was issued. The other two 

payments, totaling $4,000, were made to a coowner of the account. Since the financial 

institution must perform the account review 

based only on the presence of benefit 

payments, without regard to the existence of 

co-owners on the account or payments to 

multiple beneficiaries or under multiple 

programs, the financial institution establishes 

the protected amount at $7,000, equal to the 

sum of the four benefit payments posted to 

the account during the lookback period. 

Since $7,000 is also the balance in the 

account at the time of the account review, 

there are no additional funds in the account 

which can be frozen. The financial 

institution is not required to send a notice to 

the account holder. 

By the Department of the Treasury. 

Richard L. Gregg, 

Fiscal Assistant Secretary. 

Dated: May 9, 2013. 

By the Social Security Administration. 

Carolyn W. Colvin, 

Acting Commissioner of Social Security. 

Dated: May 1, 2013. 

By the Department of Veterans Affairs. 

Jose D. Riojas, 

Interim Chief of Staff . 

Dated: April 25, 2013. 

By the Railroad Retirement Board. 

Martha P. Rico, 

Secretary to the Board. 

By the Office of Personnel Management. 

Elaine Kaplan, 

Acting Director. 

[FR Doc. 2013–12567 Filed 5–28–13; 8:45 am] 

BILLING CODE 4810–25–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1926 

[Docket No. OSHA–2012–0025] 

RIN 1218–AC75 

Cranes and Derricks in Construction: 

Revising the Exemption for Digger 

Derricks 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule. 

SUMMARY: OSHA published a direct final 

rule and a companion notice of 

proposed rulemaking on November 9, 

2012, to broaden the exemption for 

digger derricks in its construction 

standard for cranes and derricks. OSHA 

received a significant adverse comment 

on the direct final rule during the 

comment period, and as a result, OSHA 

withdrew the direct final rule on 

February 7, 2013. After considering this 

comment, OSHA is issuing this final 

rule based on the notice of proposed 

rulemaking. 

DATES: This final rule is effective on 

June 28, 2013. 

ADDRESSES: In compliance with 28 

U.S.C. 2112(a), OSHA designates the 

Associate Solicitor of Labor for 

Occupational Safety and Health as the 

recipient of petitions for review of the 

final rule. Contact Joseph M. 

Woodward, Associate Solicitor, at the 

Office of the Solicitor, Room S–4004, 

U.S. Department of Labor, 200 

Constitution Avenue NW., Washington, 

DC 20210; telephone: (202) 693–5445. 

FOR FURTHER INFORMATION CONTACT: 

General information and press 

inquiries: Mr. Frank Meilinger, OSHA 

Office of Communications, Room 

N–3647, U.S. Department of Labor, 200 

Constitution Avenue NW., Washington, 

DC 20210; telephone: (202) 693–1999. 

Technical inquiries: Mr. Garvin 

Branch, Directorate of Construction, 

Room N–3468, OSHA, U.S. Department 

of Labor, 200 Constitution Avenue NW., 

Washington, DC 20210; telephone: (202) 

693–2020; fax: (202) 693–1689. 

Copies of this Federal Register notice 

and news releases: This Federal 

Register notice, as well as news releases 

and other relevant information, are 

available at OSHA’s Web page at 

http://www.osha.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Discussion of the Digger-Derrick Exemption 

in 29 CFR 1926 Subpart CC 

A. Background 

B. Comment on the Proposed Rule and 

Withdrawal of the Direct Final Rule 

C. Agency Decision To Issue a Final Rule 

D. Revisions to the Text of the Exemption 

in 29 CFR 1926.1400(c)(4) 

E. Discussion of Conforming Revisions to 

29 CFR 1926 Subpart V 

II. Agency Determinations 

A. Significant Risk 

B. Final Economic Analysis and Final 

Regulatory Flexibility Analysis 

C. Technological Feasibility 

D. Paperwork Reduction Act of 1995 

E. Federalism 

F. State Plan States 

G. Unfunded Mandates Reform Act 

H. Consultation and Coordination With 

Indian Tribal Governments 

List of Subjects in 29 CFR Part 1926 

Authority and Signature 

Amendments to Standards 


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