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[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

§ 18.19 Settlement.

The applicant and agency counsel may agree On a proposed settlement of the award before final action on the application, either in connection with a Settlement of the underlying proceeding, or after the underlying proceeding has been concluded, in accordance with the component agency’s standard Settlement procedure. If a prevailing party and agency counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed Settlement.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

§ 18.20 Further proceedings.

(a) Ordinarily, the determination of an award will be made On the basis of the written record. However, On request of either the applicant Or agency Counsel, Or on his Or her Own initiative, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written Submissions Or, as to issues other than Substantial justification (such as the applicant’s eligibility or Substantiation of fees and expenses), pertinent discovery or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be Conducted as promptly as possible. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are Sought.

(b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

§ 18.21 Decision.

The adjudicative officer shall issue an initial decision on the application within 30 Calendar days after completion of proceedings on the application. The initial decision of the adjudicative officer shall include written findings and conclusions on the applicant's eligibility and Status as a prevailing party, and an explanation of the reaSons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Department’s position was substantially justified, whether the applicant unduly protracted the proceedings, or whether Special circumstances make an award unjust. If the applicant has Sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the rea,SOnS for the allocation made.

[47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6799, Mar. 3, 1988]

§ 18.22 Agency review.

Either the applicant or agency counsel may file a petition for review of the initial decision On the fee application, or the Department may decide to review the decision on its own initiative. The petition must be filed with the General Counsel, Office Of the ASSistant General Counsel for Administration, Rm. 5882, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW., Washington, DC 20230, not later than 30 calendar days after the initial decision is issued. For purposes of this Section, a document will be considered filed with the General Counsel as of the date of the postmark (or for government penalty mail, as shown by a certificate of mailing), if mailed, or if not mailed, as of the date actually delivered to the Office of General Counsel. A petition for review must be accompanied by a full written statement in Support thereof, including a precise Statement of why the petitioner believes the initial decision should be reversed or modified, and proof of Service upon all parties. A reSponse to the petition may be filed by another party to the proceeding and must be filed with the General Counsel at the above address not more than 30 calendar days after the date of Service of the petition for review. The General Counsel may request any further Submissions deemed helpful in resolving the petition for review. If neither the applicant nor agency counsel seeks review and the Department does not take review on its own initiative, the initial decision on the application shall become a final decision of the Department, 30 calendar days after it is issued. Whether to review a decision is a matter within the discretion of the General Counsel. If review is taken, the General Counsel will issue the Department’s final decision on the application or remand the application to the adjudicative officer for further proceedings. The standard of review exercised by the General Counsel shall be that which was required for the highest level of Departmental review which could have been exercised on the underlying covered proceeding.

[53 FR 6799, Mar. 3, 1988]

§ 18.23 Judicial review.

Judicial review of final agency deciSions On awards may be Sought as provided in 5 U.S.C. 504(c)(2).

§ 18.24 Payment of award.

An applicant Seeking payment of an award by the Department, Shall Submit a copy of the final decision granting the award, accompanied by a certifiCation that the applicant will not seek review of the decision in the United States courts to the General Counsel, U.S. Department of Commerce, 14th Street, and Constitution Avenue, NW., Room 5870, Washington, D.C. 20230. The Department will pay the amount awarded to the applicant within 60 calendar days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been Sought by the applicant or any other party to the proceeding. [47 FR 13510, Mar. 31, 1982, as amended at 53 FR 6800, Mar. 3, 1988]


Sec. 19.1 Purpose.

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(a) These regulations inplement 31 U.S.C. 3720A which authorizes the IRS to reduce a tax refund by the amount of a past-due legally enforceable debt Owed to the United States. (b) For purposes of this section, a past-due legally enforceable debt referable to the IRS is a debt which is Owed to the United States and: (1) Except in the case of a judgment debt, has been delinquent for at least three months but has not been delinQuent for more than ten years at the time the offset is made; (2) Cannot be currently collected pursuant to the salary offset provisions of 5 U.S.C. 5514(a)(1); (3) Is ineligible for administrative offset under 31 U.S.C. 3716(a) by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by administrative offset under 31 U.S.C. 3716(a) by the Department against amounts payable to or on behalf of the debtor by or on behalf of the Department; (4) With respect to which, the DOC has given the taxpayer at least 60 days from the date of notification to present evidence that all or part of the debt is not past-due or legally enforceable, the DOC has considered evidence presented by such taxpayer, and has determined that an amount of such debt is pastdue and legally enforceable;

(5) Has been disclosed by the DOC to a consumer reporting agency as authorized by 31 U.S.C. 3711(f), unless a consumer reporting agency would be prohibited from using such information by 15 U.S.C. 1681C, or unless the amount of the debt does not exceed $100.00; (6) With respect to which, the DOC has notified Or has made a reasonable attempt to notify the taxpayer that the debt is past-due and, unless repaid within 60 days thereafter, will be referred to the IRS for Offset against any overpayment of taxes; (7) Is at least $25.00; (8) With respect to which, all other requirements of 31 U.S.C. 3720A and the Department of the Treasury regulations Codified at 26 CFR 301.6402–6 relating to the eligibility of a debt for tax refund offset have been Satisfied.

§ 19.3 Administrative charges.

In accordance with 4 CFR part 102, all administrative charges incurred in Connection with the referral of a debt, to the IRS shall be assessed on the debt, and thus increase the amount of the Offset.

§ 19.4 Notice requirement before offset.

A request for a reduction of an IRS tax refund will be made Only after the DOC makes a determination that an amount is owed and past-due and provides the debtor with Sixty (60) days written notice. The DOC’s notice of intention to Collect by IRS tax refund Offset (Notice Of Intent) will include:

(a) The amount of the debt;

(b) A statement that unless the debt is repaid within Sixty (60) days from the date of the DOC’s Notice of Intent, DOC intends to collect the debt by requesting that the IRS reduce any amounts payable to the debtor as refunds of Federal taxes paid by an amount equal to the amount of the debt, plus accumulated interest and other charges;

(c) A statement that the debtor has the right to present evidence that all or part of the debt is not pass-due or legally enforceable;

(d) A mailing address for forwarding any written correspondence and a Contact name and phone number for any Questions.

§ 19.5 Review within the Department.

(a) Notification by debtor. A debtor who receives a Notice of Intent has the right to present evidence that all or part of the debt is not past-due or not legally enforceable. To exercise this right, the debtor must:

(1) Send a written request for a review of the evidence to the address provided in the notice.

(2) State in the request the amount disputed and the reasons why the debtor believes that the debt is not pastdue or legally enforceable.

(3) Include in the request any documents which the debtor wishes to be COnsidered Or State that additional information will be submitted within the remainder of the sixty (60) day period.

(b) Submission of evidence. The debtor may Submit evidence showing that all or part of the debt is not past-due or not legally enforceable along with the notification required by paragraph (a) of this section. Failure to submit the notification and evidence within sixty (60) days will result in an automatic referral of the debt, to the IRS without further action by the DOC.

(C) Review of the evidence. DOC will consider all available evidence related to the debt. Within 30 days of the debtOr’s Complete and timely response, if feasible, DOC will notify the debtor whether DOC has sustained, amended, or Canceled its determination that the debt is past-due and legally enforceable.

§ 19.6 Departmental determination.

(a) Following review of the evidence, DOC will issue a written decision which will include the Supporting rationale for the decision.

(b) If DOC either Sustains Or annends its determination, it shall notify the debtor of its intent to refer the debt to the IRS for Offset against the debtor’s Federal income tax refund. If DOC CanCels its Original determination, the debt will not be referred to the IRS.

§ 19.7 Stay of offset.

If the debtor timely notifies the DOC that he or she is exercising the right described in § 19.5(a) and timely submits evidence in accordance with $19.5(b), any notice to the IRS will be Stayed until the issuance of a written

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regulations at 45 CFR Part 90. The Act and the general regulations prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act and the general regulations permit federally assisted programs and activities, and recipients of Federal funds, to continue to use age distinctions and factors Other than age which meet the requirements of the Act and its implementing regulations.

$20.2 Programs to which these regulations apply. (a) The Act and these regulations apply to each DOC recipient and to each program or activity operated by the recipient which receives or benefits from Federal financial assistance provided by any entity of DOC. (b) The Act and these regulations do not apply to: (1) An age distinction contained in that part of a Federal, State, or local Statute or ordinance adopted by an elected, general purpose legislative body which: (i) Provides benefits Or assistance to persons based on age; Or (ii) Establishes Criteria for participation in age-related terms; Or (iii) DeSCribes intended beneficiaries Or target groups in age-related terms. (2) Any employment practice Or any employer, employment agency, labor Organization, or any labor-management joint apprenticeship training program, except for any program Or activity receiving Federal financial assistance for public service employment.

§ 20.3 Definitions.

As used in these regulations, the following terms are defined as follows: (a) Act means the Age Discrimination Act of 1975, as amended (Title III of Pub. L. 94–135). (b) Action means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard, or method of administration. (c) Age means how old a person is, or the number of years from the date of a person’s birth. (d) Age distinction means any action using age or an age-related term.

(e) Age-related term means a word or words which necessarily imply a particular age or range of ages (for example: “children,” “adult,” “older perSons,” but not “student”). (f) Agency means a Federal department or agency that is empowered to extend financial assistance. (g) DOC means the U.S. Department of Commerce. (h) Federal financial assistance means any grant, entitlement, loan, Cooperative agreement, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the agency provides or otherwise makes available asSistance in the form of: (1) Funds; or (2) Services of Federal personnel; or (3) Real and personal property Or any interest in or use of property, includ1ng: (i) Transfers or leases of property for less than fair market value or for reduced considerations; and (ii) Proceeds from a Subsequent transfer or lease of property if the Federal share of its fair market value is not returned to the Federal GOvernment. (i) Normal Operation means the Operation of a program or activity without significant changes that would impair its ability to meet its objectives. (j) Recipient means any State or its political subdivision, any instrumentality of a State or its political Sub-division, any public or private agency, institution, Organization, or other entity, or any person to which Federal financial assistance is extended, directly or through another recipient. Recipient includes any Successor, assignee, Or transferee, but excludes the ultimate beneficiary of the assistance. (k) Secretary means the Secretary of Commerce Or his or her designee. (1) Statutory objective means any purpose of a program or activity expressly stated in any Federal Statute, State statute, or local statute or ordinance adopted by an elected, general purpose legislative body. (m) Subrecipient means any of the entities in the definition of “recipient” to which a recipient extends or passes on Federal financial assistance. A Subrecipient is generally regarded as a re

Cipient Of Federal financial assistance and has all the duties of a recipient in these regulations.

(n) United States means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal ZOne, the Northern Marianas, and the territories and possessions Of the United States.

Subport B–Sfonddros for Determining Age Discrimination

$20.4 Rules against age discrimination.

The rules stated in this Section are limited by the exceptions contained in $20.5. (a) General rule: No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial a.SSistance. (b) Specific rules: A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual licensing, or other arrangements, use age distinctions or take any other actions which have the effect, on the basis of age, of: (1) Excluding individuals from, denying them the benefits of, or Subjecting them to discrimination under, a program or activity receiving Federal financial assistance, or (2) Denying Or limiting individuals in their Opportunity to participate in any program or activity receiving Federal financial assistance. (c) The specific forms of age discrimination listed in paragaph (b) of this section do not necessarily Constitute a complete list. (d) If a recipient operating a program provides special benefits to the elderly or to children, such use of age distinctions shall be presumed to be necessary to the normal Operation of the program, notwithstanding the provisions of $20.5.

$20.5 Exceptions to the rules.

(a) Normal Operations or Statutory objective of any program or activity. A recipient is permitted to take an action

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