66972 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices

percent of the voting shares of Bank of

Nichols Hills, Oklahoma City,

Oklahoma (in organization).

In connection with this application,

Pioneer Bancshares, Inc., Employee

Stock Ownership Plan, Ponca City,

Oklahoma, and its subsidiary, Pioneer

Bancshares, Inc., Ponca City, Oklahoma;

have applied to become bank holding

companies by acquiring 100 percent of

the voting shares of Bancshares of

Nichols Hills, Inc., Oklahoma City,

Oklahoma, proposed parent of Bank of

Nichols Hills, Oklahoma City,

Oklahoma (in organization).

2. Platte Valley Bancshares, Inc.,

Kansas City, Missouri, and Peoples

Bancshares of Schuyler County, Kansas

City, Missouri, through their subsidiary

Lindsey Bancshares, Inc., Harrisonville,

Missouri; to acquire 100 percent of the

voting shares of Harrisonville

Bancshares, Inc., Harrisonville,

Missouri, and thereby indirectly acquire

Allen Bank & Trust Co., Harrisonville,

Missouri.

In connection with this application,

Peoples Bancshares of Schuyler County

and Lindsey Bancshares, Inc., also have

applied to become bank holding

companies.

F. Federal Reserve Bank of San

Francisco (Kenneth R. Binning,

Director, Bank Holding Company) 101

Market Street, San Francisco, California

94105:

1. FNB Bancorp, Los Angeles,

California; to acquire Founders National

Bank of Los Angeles, Los Angeles,

California. Consummation of this

application must be recevied by January

16, 1996.

Board of Governors of the Federal Reserve

System, December 20, 1995.

Jennifer J. Johnson,

Deputy Secretary of the Board.

[FR Doc. 95–31304 Filed 12–26–95; 8:45 am]

BILLING CODE 6210–01–F

FEDERAL TRADE COMMISSION

Notice of Maine Exemption From The

Fair Debt Collection Practices Act

AGENCY: Federal Trade Commission.

ACTION: Exemption from Sections 803–

812 of the Fair Debt Collection Practices

Act granted to State of Maine.

SUMMARY: The Commission is hereby

publishing its decision to grant the State

of Maine an exemption from Sections

803–812 of the Fair Debt Collection

Practices Act for various classes of debt

collection practices conducted in

Maine, in accordance with Section 817

of that Act.

EFFECTIVE DATE: March 26, 1996.

FOR FURTHER INFORMATION CONTACT: John

F. LeFevre, Division of Credit Practices,

Bureau of Consumer Protection, Federal

Trade Commission, Washington, D.C.

20580; (202) 326–3224.

SUPPLEMENTARY INFORMATION: The Fair

Debt Collection Practices Act, 15 U.S.C.

1691 et seq. (‘‘FDCPA’’), prohibits a

number of deceptive, unfair and abusive

practices by third party debt collectors.

Section 817 of the FDCPA requires

that the Commission exempt from its

requirements any class of debt

collection practices within any State if,

upon application, the Commission

determines that under the law of the

State, the class of debt collection

practices is subject to requirements

substantially similar to those imposed

by the FDCPA, and that there is

adequate provision for enforcement. The

State of Maine Bureau of Consumer

Credit Protection (‘‘Applicant’’) has

filed an application seeking exemption

from the FDCPA for various classes of

debt collection practices in Maine.

The FDCPA prohibits debt collectors

from using false or misleading

statements, harassing or abusive

conduct or any unfair methods to collect

debts. Among the practices which are

specifically prohibited are making false

threats to coerce payment (such as false

threats of suit); using deceptive

collection notices that falsely appear to

be from an attorney or court; and

engaging in any sort of harassment, such

as threatening violence, using profanity

and obscenities, or making continuous

phone calls. The FDCPA also restricts

the extent to which debt collectors may

call a consumer at work and prohibits

them from making calls to consumers

very early in the morning or late at

night. With a few narrow exceptions, it

prohibits collectors from contacting

third parties and revealing the existence

of a consumer’s debt. In addition, the

FDCPA prohibits collectors form adding

charges to a debt unless the consumer

involved agrees to them or they are

permitted by law, and from filing suit

against a consumer outside of the

district of the consumer’s residence or

where the contract creating the debt was

signed.

Under the FDCPA, if a consumer

disputes the debt in writing, the

collector is required to stop all

collection efforts until the debt is

verified. The FDCPA also states that if

the consumer demands in writing that

the debt collector cease all further

collection efforts, the debt collector

must comply even if the debt is valid.

Finally, the FDCPA gives a consumer

the right to bring suit against a debt

collector in any court for violations of

the FDCPA and, if successful, to receive

actual damages and additional damages

up to $1,000, as well as costs and

attorney’s fees.

The FDCPA is enforced primarily by

the Federal Trade Commission. A

violation of the FDCPA is deemed an

unfair or deceptive practice in violation

of the Federal Trade Commission Act.

All of the functions and powers of the

Federal Trade Commission Act are

available to the Commission to enforce

compliance with the FDCPA by any

person. The Commission may enforce

the provisions of the FDCPA in federal

court, seeking civil penalties and

injunctive and other relief as

appropriate.

The Commission has promulgated

procedures for state applications for

exemption form the provisions of the

FDCPA, which are published in 16

C.F.R. 901 (1995) (‘‘Procedures’’).

Section 901.2 of the Procedures

provides that any state may apply to the

Commission for a determination that,

under the laws of that State, (1) any

class of debt collection practices within

that State is subject to requirements that

are substantially similar to, or provide

greater protection for consumers than,

those imposed under Sections 803

through 812 of the FDCPA; and (2) there

is adequate provision for state

enforcement of such requirements.

Section 901.4 of the Procedures

describes the criteria for making the

determination. Section 901.4(a) requires

that (1) the definitions and rules of

construction in the state law import the

same meaning and have the same

application as those prescribed by the

FDCPA; (2) debt collectors provide all

the applicable notifications under the

state law that are required by the

FDCPA; (3) debt collectors under the

state law take all affirmative actions and

abide by obligations substantially

similar to, or more extensive than, those

prescribed by the FDCPA; (4) debt

collectors under the state law abide by

the same or more stringent prohibitions

as are prescribed by the FDCPA; (5)

obligations and responsibilities imposed

on consumers under the state law are no

more costly, lengthy, or burdensome

than corresponding obligations or

responsibilities imposed on consumers

by the FDCPA; and (6) consumers’ rights

and protections under the state law are

substantially similar to, or more

favorable than, those provided by the

FDCPA. Section 901.4(b) requires that

the Commission consider (1) the

facilities, personnel and funding

devoted to administrative enforcement

of the state law; (2) provisions in the

state law for civil liability (for actions

brought in the private sector) as
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices 66973

1 59 FR 24,159 (May 10, 1994).

2Maine’s jurisdiction would extend, therefore, to

those transacting any business within the State to

the extent permitted by the due process clause of

the Fourteenth Amendment of the U.S.

Constitution. Me. Rev. Stat. Ann., Title 14 §§ 704–

A.1—A.2.A (1975).

compared with Section 813 of the

FDCPA; and (3) the statute of limitations

for civil liability in the state law (for

actions brought in the private sector)

which should be substantially similar or

longer than that in the FDCPA. The

Commission must consider each

provision of the state law in comparison

with each corresponding provision in

Sections 803 through 812 of the FDCPA,

and not the state law as a whole in

comparison with the FDCPA as a whole.

Section 901.3 of the Procedures

requires that an application be

accompanied by a variety of documents

including (1) the state law; (2) a

comparison of the provisions of the state

law with various sections of the FDCPA;

(3) a copy of the full text of the law that

provides for its enforcement; (4) a

comparison of provisions of the law that

provides for enforcement with the

provisions of Section 814 of the FDCPA;

and (5) a statement identifying the state

office designated to administer the state

law, along with a description of the

ability of that office to effectively

administer the statute. If an application

is filed in accordance with the

Procedures, Section 901.5 states that the

filing shall be published in the Federal

Register. Section 901.6 provides that the

Commission may grant an exemption

under the provisions of the Procedures.

Maine’s application requests

exemption from the provisions of the

FDCPA for various classes of debt

collection practices in Maine governed

by Title 32 of the Maine Revised

Statutes, Section 11001 et seq. Maine

seeks an exemption for the following

classes of practices: Collection by means

of the mails and other interstate and

intrastate written communications;

collection by use of telephone and other

electronic means of transmission; inperson collection; and repossession or

other ‘‘enforcement of security interest’’

activity. In filing the application, Maine

complied with Section 901.3 of the

Procedures.

On May 27, 1993, Applicant filed an

addendum to it application of February

25, 1993, stating that certain changes

had been made to Title 32 of the Maine

Revised Statutes, Section 11002.6. The

definition of the term ‘‘debt collector’’

was broadened to include attorneys

whose principal activities include

collection of debts for clients.

Subsection 6 was further amended by

including within the definition of ‘‘debt

collector’’ any person who regularly

engages in the enforcement of security

interests securing debts, but excluding

any person who retrieves collateral

when a consumer has voluntarily

surrendered possession. A new Section

11017 authorizes a debt collector to take

possession of collateral after default

under certain conditions.

Applicant asserts that the provisions

of Maine’s Fair Debt Collection Practices

Act (‘‘Maine Act’’), Me. Rev. Stat. Ann.,

Title 32 Section 11011 et seq., and

related statutes are substantially similar

to, or provide greater protection for

consumers than, the equivalent

provisions of the FDCPA, and that the

State of Maine is able to provide

adequate enforcement of the Maine

Act’s requirements. Applicant’s request

was published in the Federal Register

for sixty days of comment.1

After evaluating the request and the

comments received, the Commission

has determined that an exemption from

Sections 803–812 of the FDCPA for debt

collection practices conducted within

Maine should be granted. Pursuant to

Section 817 of the FDCPA, the

Commission analyzed whether the level

of protection to consumers under the

Maine Act is substantially equivalent to

that provided in the FDCPA and

whether there is adequate provision for

enforcement of the Maine Act by the

State. In making this determination, the

Commission considered each provision

of the Maine Act and compared it with

the corresponding provision in the

FDCPA, in accordance with 16 C.F.R.

901.4, as discussed below. The

exemption proceeding as a whole was

conducted pursuant to 16 C.F.R. 901 et

seq.

Comments

Two comments were received. One

comment was from a consumer from

Virginia who objected to ‘‘certain

provisions of the debt collection act

being waived’’ and expressed concern

over ‘‘state licensing to avoid the

Federal Debt Collection Practices Act’’

and the monitoring of state

requirements. The second comment was

from Harry W. Giddinge, Deputy

Superintendent of the Bureau of

Consumer Credit Protection of the State

of Maine, addressing each question

posed in the Commission’s Request for

Comment and concluding in each case

that the protection afforded consumers

by the Maine Act are substantially

similar to, or greater than, those

provided by the FDCPA.

I. The Level of Protection to Consumers

Provided by the Maine Act Is

Substantially Equivalent to or Greater

Than That Provided by the FDCPA

Generally, the Maine Act either

replicates the language of the FDCPA or

provides greater protection than the

FDCPA. In the Federal Register notice

of Maine’s application for exemption,

the Commission highlighted the

language differences between the

various sections of the Maine Act and

the FDCPA, each of which discussed is

below.

A. Definitions (Section 803 of the

FDCPA; Sections 11002, 11003, 11012 of

the Maine Act)

1. Conducting Business Within the State

Section 11002.2 of the Maine Act

limits the coverage of the Maine Act to

those conducting business in Maine; it

has no precise counterpart in the

FDCPA because the FDCPA’s

jurisdiction is nationwide. The

jurisdiction of the Maine Act extends to

violations by debt collectors physically

located in Maine and to non-residents

doing business in Maine, to the extent

that the State’s long-arm statute affords

jurisdiction over non-resident

defendants.2

The definition reflects the limits of

Maine’s jurisdiction in policing debt

collectors as compared to the

nationwide jurisdiction of the

Commission in policing debt collectors.

The language limiting the scope of

Maine’s enforcement only to violations

committed in the State by resident debt

collectors as well as non-resident

collectors acting within the State does

not affect the level of protection

afforded to Maine residents by the

Maine Act as compared to the

protection afforded to Maine residents

by the FDCPA.

2. Definition of Debt Collector

Maine’s definition of debt collector in

its Act is identical to section 803(6) of

the FDCPA, except that section 11002.6

of the Maine Act also includes:

Persons who furnish collection systems

carrying a name which simulates the name of

the debt collector and who supply forms or

form letters to be used by the creditor even

though the forms direct the debtor to make

payments directly to the creditor.

Applicant views this provision as a

logical extension of the portion of

section 803(6) that includes creditors

using names other than their own

within the definition of debt collector.

The State provision functions to prevent

creditors from using collection systems

that create the false impression in the

mind of the consumer that a debt
66974 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices

3As such, Section 11002.6 also provides much

the same protection as Section 812 of the FDCPA

(which addresses form-sellers).

4Section 11003.1 of the Maine Act also excludes

creditors collecting in their own names.

5Section 11003.1 of the Maine Act, which

previously excluded attorneys from the definition

of ‘‘debt collector,’’ was repealed following Maine’s

initial request for exemption of February 25, 1993.

Maine submitted an addendum to its application,

dated May 27, 1993, reporting that Section 11002.6

of the Maine Act had been modified by the

legislature to include attorneys at law collecting

debts on behalf of their clients (Maine Public Law

126, May 18, 1993). The modification became

effective in September 1993.

6The Maine Act requires that the attorney’s

‘‘principal activities’’ include collecting debts.

collector is involved in the collection

process rather than the creditor.3

As compared to section 803(6) of the

FDCPA, therefore, section 11002.6 of the

Maine Act provides greater protection to

the consumer because it specifically

includes those who routinely provide

creditors with the means of

misrepresent the involvement of a debt

collector in the creditor’s collection

activities.

3. Collection Activities Related to a

Business

Section 11003.8 of the Maine Act

excludes from the definition of ‘‘debt

collector’’ those whose collection

activities are confined or directly related

to the operation of a business other than

that of a debt collector, such as a

financial institution already regulated

under title 9–B of the Maine Banking

Code. The FDCPA does not contain this

precise exclusion, although section

803(6) does exclude creditors collecting

their own debts in their own names, as

well as other designated groups such as

government employees, process servers,

non-profit organizations and mortgage

servicers.4 The section 11003.8

exclusion appears to be directed to

persons who are not collection agencies

but collect their own debts on occasion.

Presumbly, these groups are employees

or officers of creditors such as financial

institutions who collect only for

themselves or others whose principal

business is not debt collection but who

sometimes engage in collection activity.

These groups are also excluded by

section 803(6) of the FDCPA. Thus, the

scope of the section 11003.8 exclusion

in the Maine Act is no greater than that

provided by section 803(6) of the

FDCPA. The coverage of the two Acts,

therefore, remains ‘‘substantially

similar.’’

4. Attorneys

Section 11002.6 of the Maine Act

specifically includes within the

definition of debt collector ‘‘any

attorney-at-law whose principal

activities include collecting debts as an

attorney on behalf of and in the name

of clients.5 Section 803(6) of the FDCPA

defines debt collectors as persons who

regularly collect debts for others or who

are engaged in a business the principal

purpose of which is debt collection. An

attorney could fall within this

definition. The FDCPA, however, does

not specifically cover attorneys, as a

group, as does Section 11002.6 of the

Maine Act. In any event, the principle

in both is the same: a party must

regularly collect debts for others or run

a debt collection business to be covered.

The Maine Act 6 differs from the

FDCPA only in that it specifically

identifies attorneys who collect debts

for clients as ‘‘debt collectors.’’

Because is specifically addresses

attorneys, the definition of debt

collector in the Maine Act is more

precise as to attorneys than section

803(6) of the FDCPA. Its coverage may

be slightly more restrictive than that of

the FDCPA, depending upon how the

phrase ‘‘principal activities include

collecting debts’’ is interpreted. We do

not regard this latter difference as

significant. Neither Act excludes

attorneys. As far as attorneys are

concerned, the requirements are

substantially similar and the level of

protection afforded by the Maine Act is

essentially the same as that of the

FDCPA.

5. Enforcement of Security Interests

Section 11002.6 of the Maine Act

includes within the definition of ‘‘debt

collector’’ any person regularly engaged

in the enforcement of security interests.

According to the Applicant, this

includes persons who have engaged in

this activity more than five times in the

current or previous calendar year. The

definition expressly excludes persons

who routinely retrieve collateral when a

person has voluntarily surrendered

possession. Similarly, the FDCPA’s

definition of ‘‘debt collector’’ (Section

803 (6) (A)) includes any ‘‘person * * *

in any business the principal purpose of

which is the enforcement of security

interests.’’

The Maine Act is more specific than

the FDCPA and arguably more strict

since it would expressly include

persons enforcing security interests as

infrequently as six times per year,

whether or not that activity is the

‘‘principal purpose’’ of the business, as

set forth the in FDCPA. Additionally,

the FDCPA has never been interpreted

to include parties who are hired simply

to ‘‘pick up’’ collateral. The coverage of

the Maine Act in this area is at least

equal to, and probably greater than, that

of the FDCPA. Thus, the level of

protection provided is also at least equal

to, and probably greater than, that

provided by the FDCPA.

6. Repossession Activity

Section 11017 of the Maine Act

defines how repossession is to take

place and requires (1) that the debt

collector/repossessor take inventory of

any unsecured property that it acquires

along with the repossessed property;

and (2) that it notify the consumer that

the unsecured collateral will be

available at the consumer’s

convenience. There is no comparable

definition in the FDCPA. Since Section

11017 of the Maine Act places

additional requirements on the debt

collector to supply information to the

consumer, it provides greater protection

to the consumer in this area than does

the FDCPA.

7. Conclusion

These comparisons reveal that the

definitions of terms in the Maine Act as

a whole import the same meaning and

have the same application as those

prescribed by Sections 803-812 of the

FDCPA, in accordance with Section

901.4(a) (1) of the Procedures.

Therefore, as a whole, they function to

provide substantially similar or greater

protection to consumers than do the

analogous definitions in the FDCPA.

B. Acquisition of Location Information

(Section 804 of the FDCPA; Section

11011 of the Maine Act)

Section 11011 of the Maine Act is

virtually identical to Section 804 of the

FDCPA; therefore, its requirements are

‘‘substantially similar’’ to those in the

FDCPA and debt collectors’ obligations

and prohibitions under the Maine Act

are the same as those prescribed in the

FDCPA, as mandated by Sections

901.4(a) (3) and (4) of the Procedures.

C. Debt Collection Communications

(Section 805 of the FDCPA; Section

11012 of the Maine Act)

Section 805 of the FDCPA and Section

11012 of the Maine Act are virtually

identical, with the exception of nonsubstantive language differences and

dissimilar references to related state and

federal laws. Thus, Maine’s

requirements in this area also meet the

‘‘substantially similar’’ test and debt

collectors’ obligations and prohibitions

under the Maine Act satisfy the

requirements of Sections 901.4(a) (3)

and (4) of the Procedures. Section 11012

of the Maine Act also satisfies Section

901.4(a)(6) of the Procedures since the

consumer’s cease communication rights
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices 66975

7Maine points out that in most cases in Maine

FCRA is more restrictive than the federal FCRA.

The Maine FCRA (1) limits the cost of credit

reports; (2) limits the time in which a credit

reporting agency must investigate and verify or

delete trade lines; and (3) requires compliance by

any credit reporting agencies serving users in the

State of Maine. The law also requires registration

of credit reporting agencies operating within the

State.

8A shame car is an automobile with the name of

the collection company emblazoned on the door

that is parked in front of the debtor’s residence and

left there. A shame card is a calling card containing

the name of the collection agency that is left posted

on the debtor’s door or other conspicuous spot that

can be observed by others.

9The Maine Act prohibits: The false

representation or implication that a sale, referral or

other transfer of any interest in a debt shall cause

the consumer to: (1) Lose any claim or defense to

payment of the debt; or (2) Become subject to any

practice prohibited by the Act or the Maine

Consumer Credit Code, Title 9–A. (Emphasis

added.) The FDCPA is the same except for the

underlined portion.

10The definition of ‘‘consumer reporting agency’’

in the Maine Act refers to ‘‘investigative consumer

reports’’ as well as ‘‘consumer reports’’ while the

definition in the FDCPA refers only to ‘‘consumer

reports.’’ For these purposes, they are the same.

under that Section are the same as those

in Section 805(c) of the FDCPA.

D. Harassment and Abuse (Section 806

of the FDCPA; Section 11013.1 of the

Maine Act)

1. Publication of Debtor Lists

Like Section 806(3) of the FDCPA,

Section 11013.1.C of the Maine Act

prohibits publication of lists of

consumers who refuse to pay debts.

Both state and federal laws, however,

except publications to consumer

reporting agencies or persons meeting

the requirements of their respective

credit reporting acts, as defined in

Sections 603(f) or 604(3) of the federal

Fair Credit Reporting Act (‘‘federal

FCRA’’) for the FDCPA and Title 10 of

the Maine Fair Credit Reporting Act

(‘‘Maine FCRA’’) for the Maine Act.

The definition of a consumer

reporting agency (Section 603(f), federal

FCRA; Section 1312.9, Maine FCRA)

and the parties who have a permissible

purpose to receive the lists at issue

(Section 604(3), federal FCRA; Section

13121.33, Maine FCRA) are essentially

the same in both statutes. In fact, the

Maine FCRA is based upon, and was

designed to supplement, the federal

FCRA.7 Since the definitions are the

same, the limits on distribution of

debtor lists are also the same. Thus, the

state law referenced in Section 11013.1

of the Maine Act is substantially similar

to Sections 603(f) and 604(3) of the

federal FCRA; it follows that the Maine

Act’s reference to the Maine FCRA does

not adversely affect the level of

protection afforded by the Maine Act as

compared to Section 806(3) of the

FDCPA.

2. Reports to Consumer Reporting

Agencies [Sections 806(3) and 807(8) of

the FDCPA; Section 11013.4 of the

Maine Act]

There is nothing in the FDCPA that

prohibits a collection agency from

reporting credit information to a

consumer reporting agency. As

discussed above, Section 806(3)

expressly permits distribution of debtor

lists to credit bureaus; Section 807(8)

prohibits the communication of false

credit information and requires that a

disputed debt be reported as disputed.

The Maine Act contains the same

prohibitions. In addition, however,

Section 11013.4 of the Maine Act

prohibits a debt collector from reporting

a debt solely in its own name and

requires instead that the name of the

original creditor also be included. The

FDCPA contains no comparable

requirement. The additional Maine

provision is designed to allow

consumers who review their credit

reports to determine the source of a

listed trade line rather than require

them to contact the collection agency to

determine the identity of the original

creditor. Thus, the provision makes it

easier for consumers to verify the

existence of debts as well as the parties

to whom they are owed. It provides

greater protection in this area than does

the FDCPA.

3. Shame Automobiles and Shame Cards

Section 11013.1G. of the Maine Act

specifically prohibits the use of shame

cards, shame automobiles and similar

devices.8 Section 806 of the FDCPA

contains no comparable prohibition. In

all other respects. Section 11013.1 of the

Maine Act and Section 806 of the

FDCPA are identical. Thus, to the extent

that ‘‘shame’’ devices are still in use, the

Maine Act arguably provides greater

protection in this area than does the

FDCPA.

4. Compliance With Section 901.(4)(a) of

the Procedures

The obligations and prohibitions

applicable to debt collectors required by

Section 806 of the FDCPA are

substantially the same as those required

by Section 11013.1 of the Maine Act.

Therefore, Sections 901.4(a)(3) and (4)

of the Procedures are satisfied.

E. False and Misleading Representations

(Section 807 of the FDCPA; Section

11013.2 of the Maine Act)

The two Acts prohibit the same false,

deceptive or misleading representations

in the same manner except for the

following:

1. Reference to the Maine Consumer

Credit Code

Both Section 807(6) of the FDCPA and

Section 11013.2.F(2) of the Maine Act

address false representations of the

effect of a sale or transfer of interest in

a debt on the consumer. The two

provisions are the same, except that the

Maine Act refers to practices prohibited

by Title 9–A of the Maine Consumer

Credit Code and the FDCPA does not.9

Title 9–A of the Maine Consumer Credit

Code prohibits a number of actions that

are not prohibited by the FDCPA,

including confessions of judgment, postdated instruments, use of crosscollateral and wage assignments. These

and other similar provisions all inure

uniquely to the benefit of consumerdebtors in the State of Maine. Reference

to these practices in Section

11013.2.F(2) of the Maine Act, therefore,

provides an added measure of

protection not present in Section 807(6)

of the FDCPA.

2. Reference to Maine Fair Credit

Reporting Act

Section 11013.2.P. of the Maine Act

prohibits the false representation or

implication that a debt collector

operates or is employed by a ‘‘consumer

reporting agency,’’ as defined by Title

10, Section 1312, Subsection 4, of the

Maine Fair Credit Reporting Act.

Section 807(16) of the FDCPA contains

identical language, except that it refers

to a ‘‘consumer reporting agency’’ as

defined by the federal Fair Credit

Reporting Act, 15 U.S.C. 1681a(f). As

discussed previously, the definitions of

‘‘consumer reporting agency’’ in both

the Maine Act and FDCPA are basically

the same and the term has the same

meaning in both statutes.10 Thus,

Section 11013.2.P. of the Maine Act is

substantially similar to Section 807(16)

of the FDCPA.

3. Compliance With Section 901.4(a) of

the Procedures

Section 807(11) requires that debt

collectors clearly disclose the nature

and purpose of all communications

made to collect a debt. The Maine Act

contains an identical requirement. Since

the same notification is mandated by

both Acts, Section 901.4(a)(2) of the

Procedures, which requires that all

notifications be the same, is satisfied

insofar as Section 807(11) is concerned.

Similarly, since the FDCPA and the

Maine Act are identical in this area,

with the exception of references to state

law, Sections 901.4(a) (2), (3) and (4) of
66976 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices

11These include use of a notary to collect,

commingling the funds of the debt collector and its

client, failing to return collected funds to the

creditor, and soliciting loans to pay a debt.

12Proper venues are where the real property is

located or, if no real property is involved, where the

consumer lives or signed the contract.

13The civil liability provisions of Section 11054

of the Maine Act are identical to those in Section

813. This is also true for the statute of limitations

provided in Section 11054.4 of the Maine Act (one

year) which is the same as that provided in Section

813(d) of the FDCPA for private suits.

14Procedures, Section 901.4(b). See also footnote

13. The civil liability provisions and corresponding

statute of limitations for private suits are the same.

the Procedures, requiring the same or

more stringent notifications, obligations

and prohibitions, are satisfied.

F. Unfair Practices (Section 808 of the

FDCPA; Section 11013.3 of the Maine

Act)

Section 808 of the FDCPA prohibits

eight specified unfair practices; the

preamble to Section 808 prohibits

unfairness generally. Section 11013.3 of

the Maine Act prohibits precisely the

same practices as the FDCPA, plus

several additional practices that are not

included in the FDCPA,11 and also

contains a general prohibition against

unfairness. The inclusion of several

additional practices in the Maine Act

increases the level of protection

provided by the Maine Act, as compared

with the FDCPA. As such, the Maine

Act provides for more extensive

obligations and more stringent

prohibitions in this area than does the

FDCPA, in compliance with Sections

901.4(a)(3) and (4) of the Procedures.

G. Debt Validation (Section 809 of the

FDCPA; Section 11014 of the Maine Act)

Section 809 of the FDCPA requires

disclosure of the amount of the debt and

the creditor, and requires a validation

notice. It also requires the debt collector

to verify the debt if the consumer

disputes it within thirty days. Section

11014 of the Maine Act is identical.

Section 901.4(a)(2–4) of the Procedures,

requiring that all applicable

notifications, obligations and

prohibitions be the same or more

stringent, are satisfied since the

requirements are identical. Therefore,

the protection they provide is

‘‘substantially similar.’’

H. Multiple Debts (Section 810 of the

FDCPA; Section 11015 of the Maine Act)

Section 810 of the FDCPA directs debt

collectors to apply payments for

multiple debts in accordance with the

directions of the consumer. Section

11015 of the Maine Act is identical.

Those requirements are, therefore, also

‘‘substantially similar’’ and the

protection they provide is the same. In

the same manner, Sections 901.4(a)(3),

(4) and (6) of the Procedures are

satisfied.

I. Legal Actions by Debt Collectors

(Section 811 of the FDCPA; Section

11013.3.N of the Maine Act)

Section 811 of the FDCPA permits

debt collectors to bring legal actions

against consumers, but only in certain

venues.12 Section 11013.3.N of the

Maine Act prohibits debt collectors from

instituting suit in their own names or on

behalf of others in any venue. Since no

suits are permitted, no venue provisions

are appropriate. Since the Maine Act

insulates consumer from debt collector

lawsuits in Maine, the Maine Act

provides greater protection to

consumers than does the FDCPA, which

permits them. The fact that no suits are

permitted also means that the

obligations and prohibitions applicable

to debt collectors in Maine are more

stringent than those contained in the

FDCPA, in compliance with Sections

901.4(a)(3) and (4) of the Procedures.

J. Furnishing Deceptive Forms (Section

812 of the FDCPA; Section 11016 of the

Maine Act)

Section 812 of the FDCPA prohibits

furnishing collection forms, knowing

that they would be used to create a false

impression that a third party is involved

in the collection of the debt. Section

11016 of the Maine Act is identical.

Since both statutes are substantively the

same, Sections 901.4(a)(3) and (4) of the

Procedures are satisfied and the level of

protection provided to Maine

consumers by the Maine Act is the same

as that provided by the FDCPA.

K. Civil Liability (Section 813 of the

FDCPA; Section 11054 of the Maine Act

Section 901.6(d) of the Procedures

specifies that no exemption shall extend

to the civil liability provisions of

Section 813 of the FDCPA, which

authorizes aggrieved consumers to sue

debt collectors that violate the Act

privately. Therefore, Section 813 of the

FDCPA is not included within the scope

of the exemption granted by the

Commission in response to Maine’s

request.13

L. Compliance With Sections 901.4(a)(5)

and (6) of the Procedures

Section 901.4(a)(5) and (6) require

that (1) the obligations and

responsibilities of consumers be no

more costly, lengthy or burdensome

under the Maine Act than they are

under the FDCPA; and (2) consumers’

rights and protections be substantially

similar to or greater under the Maine

Act than those provided by the FDCPA.

The Commission has already

determined that the protections

provided by the Maine Act are the same

or greater than those provided by the

FDCPA. In addition, consumers must do

nothing more under the Maine Act to

receive these protections than they do

under the FDCPA. Therefore, the

Commission determines that the

obligations and responsibilities of

consumers under the Maine Act are no

greater than those imposed by the

FDCPA. Thus, the Maine application

complies with Sections 901.4(a)(5) and

(6) of the Procedures.

M. Conclusion

Comparison of Sections 803–812 of

the FDCPA with pertinent portions of

the Maine Act supports the following

findings which meet the minimum

requirements of Section 901.4(a) of the

Procedures: (1) Definitions and rules of

construction in the two laws import the

same meaning and have the same or

similar application; (2) Debt collectors

provide all applicable notifications

required by the FDCPA under the Maine

Act; (3) Debt collectors are required by

the Maine Act to take affirmative actions

and abide by obligations that are

substantially similar to those required

by the FDCPA within the same or

similar time periods; (4) Debt collectors

must abide by the same or more

stringent prohibitions under the Maine

Act as those under the FDCPA; (5)

Obligations and responsibilities of

consumers under the Maine Act are no

more costly, lengthy or burdensome

than those under the FDCPA; and (6)

The rights and protections of consumers

under the Maine Act are substantially

similar to or more favorable than those

provided by the FDCPA. Therefore, the

provisions of the Maine Act in general

are substantially similar to, or provide

greater protection than, the provisions

of the FDCPA.

II. Enforcement of the Maine Act Is

Adequate

In order for an exemption to be

granted pursuant to Section 901.6 of the

Procedures, the Commission must find

that provisions for enforcement of the

Maine Act by the State are adequate. In

order to make this finding, the

Commission must determine that the

Maine Act makes sufficient provision

for: (1) Administrative enforcement,

including the necessary facilities,

personnel and funding; (2) civil liability

under Section 813 for failure to comply;

and (3) a statute of limitations for civil

liability of similar or longer duration

than that in Section 813 of the FDCPA.14
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices 66977

15Section 814(d), FDCPA.

16Section 11031, Subchapter III, Maine Act.

17Section 11032, Subchapter III, Maine Act.

18Section 11038, Subchapter III, Maine Act.

19Section 11040, Subchapter III, Maine Act.

20Section 11034, Subchapter III, Maine Act.

21Section 11035, Subchapter III, Maine Act.

22Section 11053, Subchapter III, Maine Act.

21Section 11052, Subchapter III, Maine Act.

21Maine Rules of Civil Procedure § 65 (1967).

25 Interview, William Lund, Superintendent,

Maine Bureau of Consumer Credit Protection,

September 6, 1994.

A. Authority

Section 814 of the FDCPA authorizes

the Commission to exercise all its

functions and powers under the Federal

Trade Commission Act in enforcing the

FDCPA. A violation of the FDCPA

constitutes an unfair or deceptive act or

practice in violation of the Federal

Trade Commission Act. The Federal

Trade Commission Act authorizes a

civil penalty of up to $10,000 for each

violation of the FDCPA done with actual

or implied knowledge of the FDCPA.

Additionally, the Commission is

empowered to seek various forms of

injunctive relief, as appropriate. The

Statute of limitations for actions brought

by the Commission against debt

collectors is five years. 28 U.S.C. 2462.

Under the FDCPA, the Commission

has no licensing or other regulatory

powers and cannot ‘‘promulgate trade

regulation rules or other regulations

with respect to the collection of debt

collectors * * *.’’ 15 Nor does the

Commission have the power to pursue

criminal liability or impose criminal

penalties for FDCPA violations. The

Commission’s jurisdiction extends to

any debt collector, as defined, located in

the United States.

Subchapters III and IV of the Maine

Act govern the licensing of Maine’s debt

collectors as well as the administration

and enforcement of the Maine Act. In

fact, a significant portion of Maine’s

authority to administer and enforce its

debt collection law lies in its licensing

power. No debt collector may conduct

business in the State without a license,

which must be renewed every two

years. In order to get a license, a debt

collector must submit financial

statements and references and agree to

an investigation of its personnel and

business practices. Changes in

ownership or management require a

new license.16 Licensees must be

bonded.17 The State is responsible for

the safety and soundness of licensed

debt collectors, as well as for

subsequent management if they become

insolvent, much like a receiver.18

Unlicensed debt collectors operating in

the State are subject to criminal

penalties.19

The State may make rules, in addition

to those in the Maine Act, pertaining to

the operation of a debt collector’s

business to safeguard the public

interest 20 and may issue ‘‘advisory

rulings’’ concerning the Maine Act.21

All form letters used by licensed debt

collectors in Maine must be approved

by the State. Additionally, consumers

must be able to contact licensed Maine

debt collectors at least 20 hours per

week.

The Maine Act authorizes the State,

through the Maine Attorney General, to

bring an action for civil penalties, not to

exceed $5,000 per count, against any

person who willfully violates the Maine

Act, no more than two years after the

violation occurred.22 Additionally, the

State may, after appropriate

investigation and examination of a

licensee’s records, file a complaint with

the State’s administrative court to

suspend or revoke a debt collector’s

license for violation of the Maine Act.23

There is no statute of limitations for a

license revocation proceeding. Finally,

the State may also seek injunctive relief,

as appropriate.24

While the civil penalties authorized

by the Maine Act are smaller than those

authorized by the FDCPA and the

statute of limitations for actions brought

by the State of Maine is shorter, there

are also significant strengths in the

Maine Act that are not present in the

FDCPA. Overall, we believe that the

strengths more than offset the weakness

to meet the test of adequacy in Section

817 of the FDCPA.

Principal in Maine’s enforcement

powers is its ability to suspend or

revoke a debt collector’s license,

effectively putting the collector out of

business in the State. There is no

comparable power granted in the

FDCPA. In addition, the State can

proceed against a debt collector for civil

penalties (albeit not as large as available

under the FDCPA) and injunctive relief

and can criminally prosecute a debt

collector for operation without a license,

which can result in a jail term. The

latter remedy also has no counterpart in

the FDCPA. Maine’s general supervisory

powers are also more extensive than the

Commission’s powers. Aside from the

State’s investigatory authority in

determining whether to issue a license,

it is responsible for monitoring the

financial stability of its licensees and

may issue additional rules and

regulations governing their conduct—a

power specifically denied the

Commission by Section 814(d) of the

FDCPA.

Typically, the State takes action

against an offending debt collector fairly

quickly after a violation is discovered.25

Because of this, the average civil penalty

recovered by the State is only $1,000–

1,500. Time-consuming investigations

are rare; one or two violative letters

often trigger the commencement of an

inquiry. Because the State takes a

‘‘hands-on’’ approach to enforcement,

an inquiry can often be resolved

expeditiously before much damage is

done. This is an extra benefit to the

public and is in contrast to the more

extensive investigations pursued by the

Commission where larger penalties are

usually more appropriate. We do not

believe that the State’s more limited

civil penalty authority and shorter

statute of limitations significantly

impede its ability to enforce the Maine

Act. Given its other powers and the

speed of its investigations, the State’s

overall enforcement authority and

effectiveness appear to be at least as

great as that possessed by the

Commission in administering and

enforcing the FDCPA.

B. Personnel and Facilities

The FDCPA is administered and

enforced primarily by the staff of the

Division of Credit Practices in the

Bureau of Consumer Protection.

Enforcement actions are typically

pursued not only by headquarters staff

but also by regional office personnel. At

any given time, the Commission has

several debt collection matters in

investigative stages or in the courts. Like

other Commission staff, attorneys

working on debt collection cases have

the resources of the federal government

from which to draw support.

The Bureau of Consumer Credit

Protection in the State of Maine enforces

the Maine Act, Maine’s Fair Credit

Reporting Act and the Maine Consumer

Credit Code. The Bureau is staffed by

fifteen employees, including office staff,

plus five field examiners. Its examiners

review collection agency practices and

conduct investigations for the purpose

of licensing collection agencies. The

examiners are trained in financing and

consumer credit and most have

employment experience with banks or

mortgage companies. Examiners also

attend a school for examiners conducted

by the National Association of

Consumer Credit Administrators to

learn both state and federal debt

collection statutes. Examiner trainees

accompany experienced examiners for

an eight month period of on-the-jobtraining. In exercising their

responsibilities, examiners spend about
66978 Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 / Notices

fifteen percent of their time enforcing

the Maine Act. Debt collector licensing

is also the primary responsibility of the

Superintendent and Deputy

Superintendent of the Bureau of

Consumer Credit Protection.

The Maine Bureau reviews the

financial posture of collection firms

applying for licenses and handles

numerous written debt collector

complaints each year, along with

hundreds of telephone complaints and

questions. Three additional individuals

in the office (consumer assistance

specialists) are trained to respond to

these inquiries about the activities of

debt collectors, with regard to both

federal and state debt collection law;

they also routinely petition the

administrator to initiate enforcement

proceedings to deal with suspected

violations of the Maine Act. The agency

has been involved in at least four court

actions in the past two years relating to

unlicensed practice or license

revocation. In addition, the Maine

Bureau has obtained voluntary

Assurances of Discontinuance from ten

debt collectors during the same time

period. The Maine Bureau publishes its

enforcement actions and mails the

information to all licensed companies as

a deterrent to further violative practices.

All license fees and examination

reimbursement costs accrue to the

agency as dedicated revenue within the

State’s budget process. In addition, a

portion of creditor and lender ‘‘volume

fees’’ based upon the amount of

consumer credit extended is also

dedicated to enforcement activities of

the Maine Bureau, on the theory that the

hiring of collection agencies by

consumer creditors justifies the funding

by those creditors of a portion of the

cost of regulating them. Approximately

$100,000 of the Maine Bureau’s total

budget of $800,000 is derived from

sources of revenue related to debt

collection activity and directed toward

enforcement of the Maine Act.

Thus, the personnel, facilities and

funding devoted to administering and

enforcing the Maine Act are comparable

to the resources expended by the

Commission in enforcing the FDCPA.

The fact that these resources will be

directed at the activities of debt

collectors in one state supports Maine’s

contention that it will have a greater

enforcement presence in the State of

Maine under the Maine Act than the

Commission does nationally under the

FDCPA.

C. Conclusion

After consideration of the facilities,

personnel and funding devoted to

administrative enforcement of the

Maine Act and the Maine Act’s

provisions for civil liability and

appropriate statutes of limitations for

both private and governmental actions,

the Commission finds that provisions

for enforcement of the Maine Act are

adequate, as required by Section

901.4(b) of the Procedures.

Action Taken

Based on the submissions of the

Maine Bureau of Consumer Credit

Protection in support of its request for

an exemption and upon the comments

received, the Commission concludes

that the Maine Act is substantially

similar to, and in some instances

provides greater protection than, the

FDCPA and contains provisions for

adequate enforcement. As such, it meets

all of the criteria set forth in Section

901.4 (a) and (b) of the Procedures. The

Commission has granted to the State of

Maine an exemption from Sections 803–

812 of the FDCPA for debt collection

practices conducted within the State on

that basis, in accordance with Section

817 of the FDCPA. The exemption will

remain in effect as long as state law

continues to afford substantially

equivalent protection to that of the

FDCPA.

To ensure that the conditions for an

exemption continue to be met, the State

of Maine must provide notice to the

Commission of any change in its law,

policies or procedures, including court

decisions, that would significantly affect

whether the state law continues to

afford substantially equivalent

protection and whether the State is

effectively enforcing the Maine Act. In

any event, the State of Maine must

provide a report to the Commission not

later than two years after the date this

exemption becomes effective, and every

two years thereafter, concerning the

manner in which the State has enforced

its law. The Commission reserves the

right to revise this reporting

requirement at a later date if

circumstances warrant or to request

additional information as needed.

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 95–31316 Filed 12–26–95; 45 am]

BILLING CODE 6750–01–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

Advisory Committees; Notice of

Meetings

AGENCY: Food and Drug Administration,

HHS.

ACTION: Notice.

SUMMARY: This notice announces

forthcoming meetings of public advisory

committees of the Food and Drug

Administration (FDA). This notice also

summarizes the procedures for the

meetings and methods by which

interested persons may participate in

open public hearings before FDA’s

advisory committees.

FDA has established an Advisory

Committee Information Hotline (the

hotline) using a voice-mail telephone

system. The hotline provides the public

with access to the most current

information on FDA advisory committee

meetings. The advisory committee

hotline, which will disseminate current

information and information updates,

can be accessed by dialing 1–800–741–

8138 or 301–443–0572. Each advisory

committee is assigned a 5-digit number.

This 5-digit number will appear in each

individual notice of meeting. The

hotline will enable the public to obtain

information about a particular advisory

committee by using the committee’s 5-

digit number. Information in the hotline

is preliminary and may change before a

meeting is actually held. The hotline

will be updated when such changes are

made.

MEETINGS: The following advisory

committee meetings are announced:

Allergenic Products Advisory

Committee

Date, time, and place. January 22,

1996, 3 p.m., Food and Drug

Administration, Bldg. 29, conference

room 121, 8800 Rockville Pike,

Bethesda, MD.

Type of meeting and contact person.

This meeting will be held by a

telephone conference call. A speaker

telephone will be provided in the

conference room to allow public

participation in the meeting. Open

public hearing, 3 p.m. to 4 p.m., unless

public participation does not last that

long; open committee discussion, 4 p.m.

to 4:40 p.m.; closed committee

deliberations, 4:40 p.m. to 5:30 p.m.;

William Freas or Sheila D. Langford,

Center for Biologics Evaluation and

Research (HFM–21), Food and Drug

Administration, 1401 Rockville Pike,

Rockville, MD 20852, 301–827–0314, or