E9-17036. Office of the Attorney General; Administration of Debt Collection; Salary and Administrative Offset; Treasury Offset Program

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule amends the regulations that govern administrative debt collection at the Department of Justice to bring the regulations into conformity with government-wide standards on salary offset procedures, to update or delete obsolete references and to make other clarifying or technical changes.

DATES:

Effective Date: July 20, 2009.

FOR FURTHER INFORMATION CONTACT:

Stuart Frisch, General Counsel, or Morton J. Posner, Attorney-Advisor, Justice Management Division, U.S. Department of Justice, Washington, DC 20530, (202) 514-3452.

SUPPLEMENTARY INFORMATION:

This rule updates the Department's administrative debt collection regulations at 28 CFR Part 11, Subparts B and C, originally issued in 1992. This rule makes changes only to the Department's internal management and does not affect the rights or obligations of the general public. In particular, the rule makes four kinds of changes.

First, the rule updates or deletes obsolete references. Sections 11.4(a), (b)(4), 11.6(j), and 11.8(j) cite the Federal Claims Collection Standards (FCCS). Formerly in title 4, Code of Federal Regulations, the FCCS were substantially revised and reissued in 2000 at 31 CFR Parts 900-904. Those references are updated. References to the former Immigration and Naturalization Service in § 11.6(b), an outdated Department of Justice order in § 11.6(e), and an outdated notification requirement in § 11.8(a) are deleted. The title of Subpart C is revised with the updated name of the former IRS Tax Refund Offset Program.

Second, the rule revises the § 11.7 exemptions to the employee salary offset procedure in § 11.8. The revisions bring the rule into conformity with the government-wide standard set out in 5 CFR § 550.1104(c).

Third, the rule makes clarifying changes. In § 11.4(b)(3)(iii), the rule now more clearly states that the employee salary offset procedures of § 11.8 do not apply to recovery of travel advances and employee training expenses. In § 11.8(c)(4)(i) and (5), the rule is revised to clarify that the deadlines for hearing and decision of an employment-related debt review are triggered by the receipt of the hearing request by the hearing officer the Department designates. These clarifying changes are consistent with the Department's longstanding interpretation of the prior regulations.

Fourth, the rule makes technical corrections. In § 11.8(b)(2) and (3), the term “salary offset coordination official” is changed to “salary offset coordination officer,” a term already defined in § 11.6(r). The rule corrects typographical errors in the prior version of §§ 11.5(b) and 11.6(h)(1).

Administrative Procedure Act

This rule relates to agency management or personnel and, pursuant to 5 U.S.C. 553(a)(2), it is exempt from the usual requirements of 5 U.S.C. 553 pertaining to prior notice and comment and a 30-day delay in effective date.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it pertains only to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis was not required to be prepared for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter.

Executive Order 12866—Regulatory Planning and Review

This action has been drafted and reviewed in accordance with Executive Order 12866 Regulatory Planning and Review, § 1(b), Principles of Regulation. This rule is limited to agency organization, management, and personnel as described by Executive Order 12866 § 3(d)(3) and, therefore, is not a “regulation” as defined by that Executive Order. Accordingly, this action has not been reviewed by the Office of Management and Budget.

Executive Order 12988—Civil Justice Reform

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13132—Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Unfunded Mandates Reform Act of 1995

As noted above, this is not a rule for which a general notice of proposed rulemaking was required or published. In addition, this rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This action pertains to agency organization and management, and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 11

• Administrative practice and procedure
• Claims
• Debt collection
• Government contracts
• Government employees
• Income taxes
• Lawyers
• Wages

Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, part 11 of title 28 of the Code of Federal Regulations is amended as follows:

PART 11—DEBT COLLECTION

1. The authority citation for part 11 is revised to read as follows:

Authority: 5 U.S.C. 301, 5514; 28 U.S.C. 509, 510; 31 U.S.C. 3711, 3718, 3720A.

2. Amend § 11.4 by revising the last sentence of paragraph (a), and paragraphs (b)(3)(iii) and (b)(4) to read as follows:

§ 11.4

[Amended]

(a) * * * This subpart is consistent with the Office of Personnel Management (OPM) regulations on salary offset, codified at 5 CFR part 550, subpart K, and with regulations on administrative offset contained within the Federal Claims Collection Standards (FCCS), 31 CFR part 901.

(b) * * *

(3) * * *

(iii) In the case where collection of a debt is explicitly provided for or prohibited by another statute. The provisions of § 11.8 of this subpart do not apply to salary offset to recover travel advances under 5 U.S.C. 5705 or employee training expenses under 5 U.S.C. 4108.

(4) Nothing in this subpart precludes the compromise, suspension, or termination of collection actions where appropriate under the FCCS.

* * * * *

§ 11.5

[Amended]

3. Amend § 11.5(b) by removing the number “311” and adding the number “31” in its place in the citation.

4. Amend § 11.6 by removing the phrase “the Immigration and Naturalization Service,” from paragraph (b); and revising paragraphs (e), (h)(1), and (j) to read as follows:

§ 11.6

[Amended]

* * * * *

(e) Compromise means the forgiveness of a debt in accordance with 31 U.S.C. 3711(a)(2) and Departmental order.

* * * * *

(h) * * *

(1) Amounts withheld from benefits payable under title II of the Social Security Act where the withholding is required by law;

* * * * *

(j) Federal Claims Collection Standards (FCCS) means standards jointly published by the Secretary of the Treasury and the Attorney General at 31 CFR parts 900-904.

5. Revise § 11.7 to read as follows:

§ 11.7

Salary adjustments.

The following debts shall not be subject to the salary offset procedures of § 11.8:

(a) Any adjustment to pay arising out of an employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over 4 pay periods or less;

(b) A routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the 4 pay periods preceding the adjustment and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and point of contact for contesting such adjustment; or

(c) Any adjustment to collect a debt amounting to $50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.

6. Amend § 11.8 by revising paragraphs (a) introductory text, (b)(2), and (b)(3), the second sentence of paragraph (c)(4)(i), the first sentence of paragraph (c)(5), and paragraph (j) to read as follows:

§ 11.8

[Amended]

(a) Notice requirements before offset. Deductions under the authority of 5 U.S.C. 5514 will not be made unless the creditor agency provides the employee with a written Notice of Intent to Offset a minimum of 30 calendar days before salary offset is initiated. The Notice of Intent shall state:

* * * * *

(b) * * *

(2) In response to a timely request submitted by the debtor, the designated salary offset coordination officer will notify the employee of the location and time when the employee may inspect and copy records related to the debt.

(3) If the employee is unable personally to inspect the records, due to geographical or other constraints, the salary offset coordination officer shall arrange to send copies of such records to the employee.

* * * * *

(c) * * *

(4) * * *

(i) * * * If the hearing will be oral, the notice shall set forth the date, time, and location of the hearing, which must occur no more than 30 days after the request is received by the hearing officer. * * *

* * * * *

(5) * * * The hearing officer shall issue a written opinion stating his or her decision, based upon all evidence and information developed at the hearing, as soon as practicable after the hearing, but not later than 60 days after the date on which the petition was received by the hearing officer, unless the hearing was delayed at the request of the employee, in which case the 60-day decision period shall be extended by the number of days by which the hearing was postponed. * * *

* * * * *

(j) Interest, penalties, and administrative costs. Where the Department is the creditor agency, it shall assess interest, penalties, and administrative costs pursuant to 31 U.S.C. 3717 and 31 CFR 901.9.

* * * * *

7. Revise the heading of subpart C to read as follows:

Subpart C—Treasury Offset Program for Collection of Debts

Dated: July 13, 2009.

Eric H. Holder, Jr.,

Attorney General.