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(c) If the Secretary grants an oral (d) In deciding whether to enter into hearing, the Secretary designates an the agreement, the Secretary may conofficial to:

sider: (1) Govern the conduct of the hear (1) The Government's interest in coling;

lecting the debt; and (2) Take all necessary action to avoid (2) Fairness to the debtor. unreasonable delay in the proceedings; (e)(1) A debtor that enters into a re

(3) Review the evidence presented at payment agreement with the Secretary the hearing, the documents submitted under this section waives any right to by the debtor, and other relevant evi further review by the Secretary of the dence; and

issues relating to the original debt (4) After considering the evidence, identified in the notice under notify the debtor in writing of the offi- 30.22(b)(3)(ii) or $30.33(b)(3)(ii). cial's decision regarding the issues (2) If a debtor breaches a repayment identified in the notice under agreement, the Secretary may offset, $ 30.22(b)(3)(ii) or $30.33(b)(3)(ii) and, if

or, under $30.30, refer to another agenappropriate, the question of waiver of cy for offset: the debt.

(i) The amount owing under the (d) The official designated under

agreement; or paragraph (c) of this section may de

(ii) The entire original debt, to the cline to hear any witnesses or testi

extent not repaid. mony not identified by the debtor in accordance with 830.25(b)(2).

(Authority: 20 U.S.C. 1221-3(a)(1) and 1226a-1, (e) The decision of the designated of

31 U.S.C. 3716(b)) ficial under paragraph (c) of this sec- (51 FR 24099, July 1, 1986, as amended at 51 tion constitutes the final decision of FR 35647, Oct. 7, 1986) the Secretary.

830.28 When may the Secretary offset (Authority: 20 U.S.C. 1221-3(a)(1) and 1226a-1, before completing the procedures 31 U.S.C. 3716(b))

under $8 30.22–30.27? 830.27 When does the Secretary enter

(a) The Secretary may offset before into a repayment agreement rather completing the procedures otherwise than offset?

required by $830.22–30.27 if: (a) If a debtor wants an opportunity

(1) Failure to offset would substanto enter into a written agreement to

tially prejudice the Government's abilrepay a debt on terms acceptable to the

ity to collect the debt; and Secretary, the debtor must:

(2) The amount of time remaining be(1) File a request to enter into such

fore the payment by the United States agreement within 20 days after the

which is subject to offset does not readate of the notice provided under

sonably permit completion of the pro830.22; and

cedures under $S 30.22–30.27. (2) File the request at the address

(b) If the Secretary offsets under specified in the notice.

paragraph (a) of this section, the Sec(b) A request filed under paragraph

retary: (a) of this section must contain all in

(1) Promptly completes the proceformation provided to the debtor in the dures under $830.22–30.27 after initinotice under $30.22 or 830.33(b) that

ating the offset; and identifies the debtor and the debt, in

(2) Refunds any amounts recovered cluding the debtor's Social Security

under the offset that are later found number and the program under which

not to be owed to the United States. the debt arose, together with any cor- (Authority: 20 U.S.C. 1221e-3(a)(1) and 1226arections of that identifying informa 1, 31 U.S.C. 3716(b)) tion.

(c) If the Secretary receives a request 830.29 What procedures apply when filed in accordance with this section,

the Secretary offsets to collect a the Secretary may enter into a written

debt owed another agency? agreement requiring repayment in ac The Secretary may initiate offset to cordance with 4 CFR 102.11, instead of collect a debt owed another Federal offsetting the debt.

agency if:

(a) An official of that agency cer debt for offset to the Secretary of the tifies in writing:

Treasury after complying with the pro(1) That the debtor owes a debt to the cedures in $8 30.20–30.28, as modified by United States;

this section. (2) The amount of the debt; and

(b) Notwithstanding $30.22(b), the no(3) That the agency has complied

tice sent to a debtor under $30.22 inwith 4 CFR 102.3; and

forms the debtor that: (b) For offsets under 31 U.S.C. 3716,

(1) The debt is past due; the Secretary makes an independent determination that the offset meets

(2) The Secretary intends to refer the the standards under $30.21(a)(2).

debt for offset to the Secretary of

Treasury; (Authority: 20 U.S.C. 1221e-3(a)(1) and 1226a (3) The debtor has an opportunity to: 1, 31 U.S.C. 3716(b))

(i) Inspect and copy Department $ 30.30 What procedures apply when records regarding the existence,

the Secretary requests another amount, enforceability, or past-due agency to offset a debt owed under status of the debt; a program or activity of the Depart (ii) Obtain a review within the Dement?

partment of the existence, amount, en(a) The Secretary may request an forceability, or past-due status of the other Federal agency to offset a debt debt; owed under a program or activity of (iii) Enter into a written agreement the Department if the Secretary cer

with the Secretary to repay the debt; tifies in writing to the other Federal

and agency: (1) That the debtor owes a debt to the

(4) The debtor must take an action United States;

set forth under paragraph (b)(3) by a (2) The amount of the debt; and

date specified in the notice. (3) That the Secretary has complied

(c) Notwithstanding $30.23(a), if a with 4 CFR 102.3.

debtor wants to inspect and copy De(b) Before providing the certification partment records regarding the existrequired under paragraph (a) of this ence, amount, enforceability, or pastsection, the Secretary complies with

due status of the debt, the debtor must: the procedures in $$ 30.20–30.27.

(1) File a written request to inspect (Authority: 20 U.S.C. 1221e-3(a)(1) and 1226a

and copy the records within 20 days 1, 31 U.S.C. 3716(b))

after the date of the notice provided

under 830.22; and $30.31 How does the Secretary apply (2) File the request at the address

funds recovered by offset 'if mul. specified in that notice. tiple debts are involved?

(d) Notwithstanding the time frame If the Secretary collects more than under $30.24(a), if a debtor wants a reone debt of a debtor by administrative

view under that paragraph, the debtor offset, the Secretary applies the recov

must file a request for review at the ered funds to satisfy those debts based

address specified in the notice by the on the Secretary's determination of

later of: the best interests of the United States,

(1) Sixty-five days after the date of determined by the facts and cir

the notice provided under 8 30.22; cumstances of the particular case.

(2) If the debtor has requested an op(Authority: 20 U.S.C. 1221e-3(a)(1) and 1226a

portunity to inspect and copy records 1, 31 U.S.C. 3716(b))

within the time period specified in IRS TAX REFUND OFFSET PROCEDURES

paragraph (c) of this section, 15 days

after the date on which the Secretary 830.33 What procedures does the Sec makes available to the debtor the rel

retary follow for IRS tax refund off evant, requested records; or sets?

(3) If the debtor has requested a re(a) If a named person owes a debt view within the appropriate time frame under a program or activity of the De under paragraph (d) (1) or (2) of this partment, the Secretary may refer the section and the Secretary has provided

197-126 D-3

821.32 Confidentiality of information

about net worth. (a) In a proceeding on an application, the public record ordinarily includes the information showing the net worth of the applicant.

(b) However, if an applicant objects to public disclosure of any portion of the information and believes there are legal grounds for withholding it from disclosure, the applicant may submit directly to the adjudicative officer

(1) The information the applicant wishes withheld in a sealed envelope labeled “Confidential Financial Information;" and

(2) A motion to withhold the information from public disclosure.

(c) The motion must

(1) Describe the information the applicant is requesting be withheld; and

(2) Explain in detail

(i) Why that information falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act;

(ii) Why public disclosure of the information would adversely affect the applicant; and

(iii) Why disclosure is not required in the public interest.

(d)(1) The applicant shall serve on Department's counsel a copy of the material referred to in paragraph (c) of this section.

(2) The applicant is not required to give a copy of that material to any other party to the proceeding.

(e)(1) If the adjudicative officer finds that the information should not be withheld from public disclosure, the information is placed in the public record of the proceeding.

(2) If the adjudicative officer finds that the information should be withheld from public disclosure, any request to inspect or copy the information is treated in accordance with the Department's established procedures under the Freedom of Information Act (34 CFR part 5). (Authority: 5 U.S.C. 504(c)(1)) $ 21.33 Allowable fees and expenses.

(a) A prevailing party may apply for an award of fees and other expenses incurred by the party in connection with

(1) An adversary adjudication; or

(2) A significant and discrete substantive portion of an adversary adjudication.

(b) If a proceeding includes issues covered by the Act and issues excluded from coverage, the applicant may apply only for an award of fees and other expenses related to covered issues.

(c) Allowable fees and expenses include the following, as applicable:

(1) An award of fees based on rates customarily charged by attorneys, agents, and expert witnesses,

(2) An award for the reasonable expenses of the attorney, agent, or expert witness as a separate item if the attorney, agent, or expert witness ordinarily charges clients separately for those expenses.

(3) The cost of any study, analysis, engineering report, test, or project related to the preparation of the applicant's case in the adversary adjudication.

(d) The calculation of fees and expenses as provided for under paragraph (c) of this section shall be in accordance with the standards for awards as described in $21.50(a) through (c). (Authority: 5 U.S.C. 504(a)(1), (b)(1)(A) and (c)(1))

Subpart E-What Procedures Are Used in Considering Applications? 821.40 Filing and service of docu.

ments. (a) Except as provided in $21.32 and in applications subject to the jurisdiction of the CRRA, an applicant shall

(1) File with the adjudicative officer its application and any related documents; and

(2) Serve on all parties to the adversary adjudication copies of its application and any related documents.

(b)(1) In an application subject to the jurisdiction of the CRRA, the applicant shall

(i) File with the CRRA its application and any other related documents; and

(ii) Serve on all parties to the adversary adjudication copies of its application and any related documents.

(2) In applications subject to 821.40(b)(1), the CRRA shall direct the

adjudicative officer to issue an initial (1) Supporting affidavits; or decision within 30 days of the comple- (2) A request for further proceedings tion of the proceedings on the applica- under $21.44. tion. The adjudicative officer shall con

(Authority: 5 U.S.C. 504(c)(1)) duct proceedings under the procedures of 88 21.41-21.44.

821.43 Comments by other parties. (Authority: 5 U.S.C. 504(a)(2) and (c)(1); 20 (a) Any party to a proceeding, other U.S.C. 1681; 29 U.S.C. 794; 42 U.S.C. 2000d-1 et than an applicant or the Department's seq. and 6101 et seq.)

counsel, may file comments on

(1) The application within 30 days $21.41 Answer to application.

after the applicant files the applica(a)(1) Within 30 days after receiving tion; an application for an award under this (2) The answer within 30 days after part, the Department's counsel may the counsel files the answer; or file an answer to the application.

(3) Both, if the comments are filed (2) The Department's counsel may re- within the time period specified in quest an extension of time for filing paragraphs (a)(1) and (a)(2) of this secthe Department's answer.

tion. (3) The adjudicative officer shall (b) The commenting party may not grant the request for an extension if participate further in proceedings on the Department's counsel shows good the application unless the adjudicative cause for the request.

officer determines that further partici(b)(1) The Department's answer pation is necessary to permit full exmust,

ploration of matters raised in the com(i) Explain any objections to the ments. award requested; and

(Authority: 5 U.S.C. 504(c)(1)) (ii) Identify the facts relied on in support of the position of the Department. 821.44 Further proceedings. (2) If the answer is based on any al

(a) The adjudicative officer shall leged facts not in the record of the adversary adjudication, the Department's

make the determination of an award on

the basis of the written record. counsel shall include with the answer

(b)(1) However, the adjudicative offieither

cer may order further proceedings on (i) Supporting affidavits; or (ii) A request for further proceedings

his or her own initiative or at the reunder $21.44.

quest of the applicant or the Depart

ment's counsel. (c)(1) If the Department's counsel and

(2) The adjudicative officer may the applicant believe that the issues in

order further proceedings only if he or the application can be settled, they

she determines that those proceedings may jointly file a statement of their

are necessary for full and fair resoluintent to negotiate a settlement. (2)(i) The filing of a statement of an

tion of issues arising from the applica

tion. intent to negotiate extends the time

(3) If further proceedings are ordered, for filing an answer for 30 days.

the adjudicative officer shall determine (ii) The adjudicative officer shall grant further extensions if the Depart

the scope of those proceedings, which

may include such proceedings as informent's counsel and the applicant joint

mal conferences, oral arguments, addily request those extensions.

tional written submissions, discovery, (Authority: 5 U.S.C. 504(c)(1))

or an evidentiary hearing.

(4) An adjudicative officer may not 821.42 Reply.

order discovery or an evidentiary hear(a) Within 15 days after receiving an ing for the issue of whether or not the answer, an applicant may file a reply. Department's position was substan

(b) If the applicant's reply is based on tially justified. any alleged facts not in the record of (C) If the applicant or the Departthe adversary adjudication, the appli- ment's counsel requests the adjudicacant shall include with the reply ei- tive officer to order further prother

ceedings, the request must

(1) Specify the information sought or (2) The costs claimed by the applithe disputed issues; and

cant for this item or items are reason(2) Explain why the additional pro able. ceedings are necessary to obtain that (d) The adjudicative officer may not information or resolve those issues. make an award to an eligible party if

the adjudicative officer, the CRRA, or (Authority: 5 U.S.C. 504(a)(3) and (c)(1))

the Secretary on review finds that,

based on a review of the administrative Subpart F-How Are Awards

record as a whole Determined?

(1) The position of the Department,

as defined in $21.3, was substantially $21.50 Standards for awards.

justified; or (a) In determining the reasonableness (2) Special circumstances make an of the amount sought as an award of award unjust. fees and expenses for an attorney, (e) The adjudicative officer may reagent, or expert witness, the adjudica- duce or deny an award to the extent tive officer shall consider one or more that the applicant engaged in conduct of the following:

that unduly or unreasonably pro(1)(i) If the attorney, agent, or expert tracted the adversary adjudication. witness is in private practice, his or (f) If an applicant is entitled to an her customary fee for similar services; award because the applicant prevailed or

over another agency of the United (ii) If the attorney, agent, or expert States that participated in a prowitness is an employee of the appli ceeding before the Department and cant, the fully allocated cost of the that agency's position was not substanservices.

tially justified, the adjudicative officer (2) The prevailing rate for similar shall determine whether to make the services in the community in which the award, or an appropriate portion of the attorney, agent, or expert witness ordi award, against that agency. For the narily performs services.

purpose of this determination, the re(3) The time the attorney, agent, or quirements of this subpart apply. expert witness actually spent on the (Authority: 5 U.S.C. 504(a), (b)(1)(A). and applicant's behalf with respect to the b )(E)) adversary adjudication.

(4) The time the attorney, agent, or $21.51 Initial decision in applications expert witness reasonably spent in not subject to the CRRA. light of the difficulty or complexity of (a) In applications not subject to the the covered issues in the adversary ad jurisdiction of the CRRA, the adjudicajudication.

tive officer shall issue an initial deci(5) Any other factors that may bear

sion on an application within 30 days on the value of the services provided by after completion of proceedings on the the attorney, agent, or expert witness. application.

(b) The adjudicative officer may not (b) The initial decision must include grant

the following: (1) An award for the fee of an attor (1) Written findings, including suffi

y or agent in excess of $75.00 per cient supporting explanation, onhour; or

(i) The applicant's status as a pre(2) An award to compensate an expert vailing party; witness in excess of the highest rate at (ii) The applicant's eligibility; which the Department pays expert wit (iii) Whether the position of the Denesses.

partment was substantially justified; (c) The adjudicative officer may also (iv) Whether special circumstances determine whether

make an award unjust; (1) Any study, analysis, engineering (v) If applicable, whether the applireport, text, or project for which the cant engaged in conduct that unduly or applicant seeks an award was nec unreasonably protracted the adversary essary for the preparation of the appli- adjudication; and cant's case in the adversary adjudica (vi) Other factual issues raised in the tion; and

adversary adjudication.

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