[Federal Register Volume 59, Number 54 (Monday, March 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6562]
[[Page Unknown]]
[Federal Register: March 21, 1994]
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FARM CREDIT ADMINISTRATION
12 CFR Part 608
RIN 3052-AB02
Collection of Claims Owed the United States
AGENCY: Farm Credit Administration.
ACTION: Final rule.
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SUMMARY: The Farm Credit Administration (FCA), by the Farm Credit
Administration Board, adopts final regulations implementing the Debt
Collection Act of 1982. This action provides procedures for the FCA to
administer claims owed to the United States arising from activities
under FCA jurisdiction. The FCA is required by law to issue these
regulations.
EFFECTIVE DATE: These regulations shall become effective on the
expiration of 30 days after this publication during which either or
both Houses of Congress are in session. Notice of the effective date
will be published in the Federal Register.
FOR FURTHER INFORMATION CONTACT:
John J. Hays, Policy Analyst, Regulation Development, Office of
Examination, Farm Credit Administration, McLean, VA 22102-5090, (703)
883-4498, TDD (703) 883-4444, or
Philip J. Shebest, Senior Attorney, Administrative Law and Enforcement
Division, Office of General Counsel, Farm Credit Administration,
McLean, VA 22102-5090, (703) 883-4020, TDD (703) 883-4444.
SUPPLEMENTARY INFORMATION: These regulations implement the Federal
Claims Collection Act of 1966, as amended by the Debt Collection Act of
1982 (Pub. L. 97-365, 96 Stat. 1749) (31 U.S.C. 3701-3719 and 5 U.S.C.
5514). In addition, these regulations supplement the regulations
published jointly by the General Accounting Office and the Department
of Justice (4 CFR parts 101-105).
The proposed regulations were published on October 29, 1993, 58 FR
58137. The FCA received no public comment. In addition, the Office of
Personnel Management, on January 21, 1994, approved the proposed
regulations for publication as final regulations in accordance with
section 8(1) of Executive Order 11609, as redesignated by Executive
Order 12107, and 5 CFR 550.1105. As a result, the proposed regulations
are being adopted as final without changing the regulatory text.
List of Subjects in 12 CFR Part 608
Government, Claims, Collection.
For the reasons stated in the preamble, part 608 of chapter VI,
title 12 of the Code of Federal Regulations is added to subchapter A to
read as follows:
PART 608--COLLECTION OF CLAIMS OWED THE UNITED STATES
Subpart A--Administrative Collection of Claims
Sec.
608.801 Authority.
608.802 Applicability.
608.803 Definitions.
608.804 Delegation of authority.
608.805 Responsibility for collection.
608.806 Demand for payment.
608.807 Right to inspect and copy records.
608.808 Right to offer to repay claim.
608.809 Right to agency review.
608.810 Review procedures.
608.811 Special review.
608.812 Charges for interest, administrative costs, and penalties.
608.813 Contracting for collection services.
608.814 Reporting of credit information.
608.815 Credit report.
Subpart B--Administrative Offset
608.820 Applicability.
608.821 Collection by offset.
608.822 Notice requirements before offset.
608.823 Right to review of claim.
608.824 Waiver of procedural requirements.
608.825 Coordinating offset with other Federal agencies.
608.826 Stay of offset.
608.827 Offset against amounts payable from Civil Service
Retirement and Disability Fund.
Subpart C--Offset Against Salary
608.835 Purpose.
608.836 Applicability of regulations.
608.837 Definitions.
608.838 Waiver requests and claims to the General Accounting
Office.
608.839 Procedures for salary offset.
608.840 Refunds.
608.841 Requesting current paying agency to offset salary.
608.842 Responsibility of the FCA as the paying agency.
608.843 Nonwaiver of rights by payments.
Authority: Sec. 5.17 of the Farm Credit Act; 12 U.S.C. 2252; 31
U.S.C. 3701-3719; 5 U.S.C. 5514; 4 CFR parts 101-105; 5 CFR part
550.
Subpart A--Administrative Collection of Claims
Sec. 608.801 Authority.
The regulations of this part are issued under the Federal Claims
Collection Act of 1966, as amended by the Debt Collection Act of 1982,
31 U.S.C. 3701-3719 and 5 U.S.C. 5514, and in conformity with the joint
regulations issued under that Act by the General Accounting Office and
the Department of Justice (joint regulations) prescribing standards for
administrative collection, compromise, suspension, and termination of
agency collection actions, and referral to the General Accounting
Office and to the Department of Justice for litigation of civil claims
for money or property owed to the United States (4 CFR parts 101-105).
Sec. 608.802 Applicability.
This part applies to all claims of indebtedness due and owing to
the United States and collectible under procedures authorized by the
Federal Claims Collection Act of 1966, as amended by the Debt
Collection Act of 1982. The joint regulations and this part do not
apply to conduct in violation of antitrust laws, tax claims, claims
between Federal agencies, or to any claim which appears to involve
fraud, presentation of a false claim, or misrepresentation on the part
of the debtor or any other party having an interest in the claim,
unless the Justice Department authorizes the Farm Credit
Administration, pursuant to 4 CFR 101.3, to handle the claim in
accordance with the provisions of 4 CFR parts 101-105. Additionally,
this part does not apply to Farm Credit Administration assessments
under part 607 of this chapter.
Sec. 608.803 Definitions.
In this part (except where the term is defined elsewhere in this
part), the following definitions shall apply:
(a) Administrative offset or offset, as defined in 31 U.S.C.
3701(a)(1), means withholding money payable by the United States
Government to, or held by the Government for, a person to satisfy a
debt the person owes the Government.
(b) Agency means a department, agency, or instrumentality in the
executive or legislative branch of the Government.
(c) Claim or debt means money or property owed by a person or
entity to an agency of the Federal Government. A ``claim'' or ``debt''
includes amounts due the Government from loans insured by or guaranteed
by the United States and all other amounts due from fees, leases,
rents, royalties, services, sales of real or personal property,
overpayment, penalties, damages, interest, and fines.
(d) Claim certification means a creditor agency's written request
to a paying agency to effect an administrative offset.
(e) Creditor agency means an agency to which a claim or debt is
owed.
(f) Debtor means the person or entity owing money to the Federal
Government.
(g) FCA means the Farm Credit Administration.
(h) Hearing official means an individual who is responsible for
reviewing a claim under Sec. 608.810 of this part.
(i) Paying agency means an agency of the Federal Government owing
money to a debtor against which an administrative or salary offset can
be effected.
(j) Salary offset means an administrative offset to collect a debt
under 5 U.S.C. 5514 by deductions at one or more officially established
pay intervals from the current pay account of a debtor.
Sec. 608.804 Delegation of authority.
The FCA official(s) designated by the Chairman of the Farm Credit
Administration are authorized to perform all duties which the Chairman
is authorized to perform under these regulations, the Federal Claims
Collection Act of 1966, as amended, and the joint regulations issued
under that Act.
Sec. 608.805 Responsibility for collection.
(a) The collection of claims shall be aggressively pursued in
accordance with the provisions of the Federal Claims Collection Act of
1966, as amended, the joint regulations issued under that Act, and
these regulations. Debts owed to the United States, together with
charges for interest, penalties, and administrative costs, should be
collected in one lump sum unless otherwise provided by law. If a debtor
requests installment payments, the debtor, as requested by the FCA,
shall provide sufficient information to demonstrate that the debtor is
unable to pay the debt in one lump sum. When appropriate, the FCA shall
arrange an installment payment schedule. Claims which cannot be
collected directly or by administrative offset shall be either written
off as administratively uncollectible or referred to the General
Counsel for further consideration.
(b) The Chairman, or designee of the Chairman, may compromise
claims for money or property arising out of the activities of the FCA,
where the claim (exclusive of charges for interest, penalties, and
administrative costs) does not exceed $100,000. When the claim exceeds
$100,000 (exclusive of charges for interest, penalties, and
administrative costs), the authority to accept a compromise rests
solely with the Department of Justice. The standards governing the
compromise of claims are set forth in 4 CFR part 103.
(c) The Chairman, or designee of the Chairman, may suspend or
terminate the collection of claims which do not exceed $100,000
(exclusive of charges for interest, penalties, and administrative
costs) after deducting the amount of any partial payments or
collections. If, after deducting the amount of any partial payments or
collections, a claim exceeds $100,000 (exclusive of charges for
interest, penalties, and administrative costs), the authority to
suspend or terminate rests solely with the Department of Justice. The
standards governing the suspension or termination of claim collections
are set forth in 4 CFR part 104.
(d) The FCA shall refer claims to the Department of Justice for
litigation or to the General Accounting Office (GAO) for claims arising
from audit exceptions taken by the GAO to payments made by the FCA in
accordance with 4 CFR part 105.
Sec. 608.806 Demand for payment.
(a) A total of three progressively stronger written demands at not
more than 30-day intervals should normally be made upon a debtor,
unless a response or other information indicates that additional
written demands would either be unnecessary or futile. When necessary
to protect the Government's interest, written demands may be preceded
by other appropriate actions under Federal law, including immediate
referral for litigation and/or administrative offset.
(b) The initial demand for payment shall be in writing and shall
inform the debtor of the following:
(1) The amount of the debt, the date it was incurred, and the facts
upon which the determination of indebtedness was made;
(2) The payment due date, which shall be 30 calendar days from the
date of mailing or hand delivery of the initial demand for payment;
(3) The right of the debtor to inspect and copy the records of the
agency related to the claim or to receive copies if personal inspection
is impractical. The debtor shall be informed that the debtor may be
assessed for the cost of copying the documents in accordance with
Sec. 608.807;
(4) The right of the debtor to obtain a review of the FCA's
determination of indebtedness;
(5) The right of the debtor to offer to enter into a written
agreement with the agency to repay the amount of the claim. The debtor
shall be informed that the acceptance of such an agreement is
discretionary with the agency;
(6) That charges for interest, penalties, and administrative costs
will be assessed against the debtor, in accordance with 31 U.S.C. 3717,
if payment is not received by the payment due date;
(7) That if the debtor has not entered into an agreement with the
FCA to pay the debt, has not requested the FCA to review the debt, or
has not paid the debt by the payment due date, the FCA intends to
collect the debt by all legally available means, which may include
initiating legal action against the debtor, referring the debt to a
collection agency for collection, collecting the debt by offset, or
asking other Federal agencies for assistance in collecting the debt by
offset;
(8) The name and address of the FCA official to whom the debtor
shall send all correspondence relating to the debt; and
(9) Other information, as may be appropriate.
(c) If, prior to, during, or after completion of the demand cycle,
the FCA determines to collect the debt by either administrative or
salary offset, the FCA shall follow, as applicable, the requirements
for a Notice of Intent to Collect by Administrative Offset or a Notice
of Intent to Collect by Salary Offset set forth in Sec. 608.822.
(d) If no response to the initial demand for payment is received by
the payment due date, the FCA shall take further action under this
part, under the Federal Claims Collection Act of 1966, as amended,
under the joint regulations (4 CFR parts 101-105), or under any other
applicable State or Federal law. These actions may include reports to
credit bureaus, referrals to collection agencies, termination of
contracts, debarment, and salary or administrative offset.
Sec. 608.807 Right to inspect and copy records.
The debtor may inspect and copy the FCA records related to the
claim. The debtor shall give the FCA reasonable advance notice that it
intends to inspect and copy the records involved. The debtor shall pay
copying costs unless they are waived by the FCA. Copying costs shall be
assessed pursuant to Sec. 602.267 of this chapter.
Sec. 608.808 Right to offer to repay claim.
(a) The debtor may offer to enter into a written agreement with the
FCA to repay the amount of the claim. The acceptance of such an offer
and the decision to enter into such a written agreement is at the
discretion of the FCA.
(b) If the debtor requests a repayment arrangement because payment
of the amount due would create a financial hardship, the FCA shall
analyze the debtor's financial condition. The FCA may enter into a
written agreement with the debtor permitting the debtor to repay the
debt in installments if the FCA determines, in its sole discretion,
that payment of the amount due would create an undue financial hardship
for the debtor. The written agreement shall set forth the amount and
frequency of installment payments and shall, in accordance with
Sec. 608.812, provide for the imposition of charges for interest,
penalties, and administrative costs unless waived by the FCA.
(c) The written agreement may require the debtor to execute a
confess-judgment note when the total amount of the deferred
installments will exceed $750. The FCA shall provide the debtor with a
written explanation of the consequences of signing a confess-judgment
note. The debtor shall sign a statement acknowledging receipt of the
written explanation. The statement shall recite that the written
explanation was read and understood before execution of the note and
that the debtor signed the note knowingly and voluntarily.
Documentation of these procedures will be maintained in the FCA's file
on the debtor.
Sec. 608.809 Right to agency review.
(a) If the debtor disputes the claim, the debtor may request a
review of the FCA's determination of the existence of the debt or of
the amount of the debt. If only part of the claim is disputed, the
undisputed portion should be paid by the payment due date.
(b) To obtain a review, the debtor shall submit a written request
for review to the FCA official named in the initial demand letter,
within 15 calendar days after receipt of the letter. The debtor's
request for review shall state the basis on which the claim is
disputed.
(c) The FCA shall promptly notify the debtor, in writing, that the
FCA has received the request for review. The FCA shall conduct its
review of the claim in accordance with Sec. 608.810.
(d) Upon completion of its review of the claim, the FCA shall
notify the debtor whether the FCA's determination of the existence or
amount of the debt has been sustained, amended, or canceled. The
notification shall include a copy of the written decision issued by the
hearing official pursuant to Sec. 608.810(e). If the FCA's
determination is sustained, this notification shall contain a provision
which states that the FCA intends to collect the debt by all legally
available means, which may include initiating legal action against the
debtor, referring the debt to a collection agency for collection,
collecting the debt by offset, or asking other Federal agencies for
assistance in collecting the debt by offset.
Sec. 608.810 Review procedures.
(a) Unless an oral hearing is required by Sec. 608.823(d), the
FCA's review shall be a review of the written record of the claim.
(b) If an oral hearing is required under Sec. 608.823(d), the FCA
shall provide the debtor with a reasonable opportunity for such a
hearing. The oral hearing, however, shall not be an adversarial
adjudication and need not take the form of a formal evidentiary
hearing. All significant matters discussed at the hearing, however,
will be carefully documented.
(c) Any review required by this part, whether a review of the
written record or an oral hearing, shall be conducted by a hearing
official. In the case of a salary offset, the hearing official shall
not be under the supervision or control of the Chairman of the Farm
Credit Administration.
(d) The FCA may be represented by legal counsel. The debtor may
represent himself or herself or may be represented by an individual of
the debtor's choice and at the debtor's expense.
(e) The hearing official shall issue a final written decision based
on documentary evidence and, if applicable, information developed at an
oral hearing. The written decision shall be issued as soon as
practicable after the review but not later than 60 days after the date
on which the request for review was received by the FCA, unless the
debtor requests a delay in the proceedings. A delay in the proceedings
shall be granted if the hearing official determines, in his or her sole
discretion, that there is good cause to grant the delay. If a delay is
granted, the 60-day decision period shall be extended by the number of
days by which the review was postponed.
(f) Upon issuance of the written opinion, the FCA shall promptly
notify the debtor of the hearing official's decision. Said notification
shall include a copy of the written decision issued by the hearing
official pursuant to paragraph (e) of this section.
Sec. 608.811 Special review.
(a) An employee subject to salary offset, under subpart C of this
part, or a voluntary repayment agreement, may, at any time, request a
special review by the FCA of the amount of the salary offset or
voluntary repayment, based on materially changed circumstances such as,
but not limited to, catastrophic illness, divorce, death, or
disability.
(b) To determine whether an offset would prevent the employee from
meeting essential subsistence expenses (costs incurred for food,
housing, clothing, transportation, and medical care), the employee
shall submit a detailed statement and supporting documents for the
employee, his or her spouse, and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing, and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
(c) If the employee requests a special review under this section,
the employee shall file an alternative proposed offset or payment
schedule and a statement, with supporting documents, showing why the
current salary offset or payments result in an extreme financial
hardship to the employee.
(d) The FCA shall evaluate the statement and supporting documents,
and determine whether the original offset or repayment schedule imposes
an undue financial hardship on the employee. The FCA shall notify the
employee in writing of such determination, including, if appropriate, a
revised offset or payment schedule.
Sec. 608.812 Charges for interest, administrative costs, and
penalties.
(a) Except as provided in paragraph (d) of this section, the FCA
shall:
(1) Assess interest on unpaid claims;
(2) Assess administrative costs incurred in processing and handling
overdue claims; and
(3) Assess penalty charges not to exceed 6 percent a year on any
part of a debt more than 90 days past due. The imposition of charges
for interest, administrative costs, and penalties shall be made in
accordance with 31 U.S.C. 3717.
(b)(1) Interest shall accrue from the date of mailing or hand
delivery of the initial demand for payment or the Notice of Intent to
Collect by either Administrative or Salary Offset if the amount of the
claim is not paid within 30 days from the date of mailing or hand
delivery of the initial demand or notice.
(2) The 30-day period may be extended on a case-by-case basis if
the FCA reasonably determines that such action is appropriate. Interest
shall only accrue on the principal of the claim and the interest rate
shall remain fixed for the duration of the indebtedness, except, as
provided in paragraph (c) of this section, in cases where a debtor has
defaulted on a repayment agreement and seeks to enter into a new
agreement, or if the FCA reasonably determines that a higher rate is
necessary to protect the interests of the United States.
(c) If a debtor defaults on a repayment agreement and seeks to
enter into a new agreement, the FCA may assess a new interest rate on
the unpaid claim. In addition, charges for interest, administrative
costs, and penalties which accrued but were not collected under the
original repayment agreement shall be added to the principal of the
claim to be paid under the new repayment agreement. Interest shall
accrue on the entire principal balance of the claim, as adjusted to
reflect any increase resulting from the addition of these charges.
(d) The FCA may waive charges for interest, administrative costs,
and/or penalties if it determines that:
(1) The debtor is unable to pay any significant sum toward the
claim within a reasonable period of time;
(2) Collection of charges for interest, administrative costs, and/
or penalties would jeopardize collection of the principal of the claim;
(3) Collection of charges for interest, administrative costs, or
penalties would be against equity and good conscience; or
(4) It is otherwise in the best interest of the United States,
including the situation where an installment payment agreement or
offset is in effect.
Sec. 608.813 Contracting for collection services.
The Chairman, or designee of the Chairman, may contract for
collection services in accordance with 31 U.S.C. 3718 and 4 CFR 102.6
to recover debts.
Sec. 608.814 Reporting of credit information.
The Chairman, or designee of the Chairman, may disclose to a
consumer reporting agency information that an individual is responsible
for a debt owed to the United States. Information will be disclosed to
reporting agencies in accordance with the terms and conditions of
agreements entered into between the FCA and the reporting agencies. The
terms and conditions of such agreements shall specify that all of the
rights and protection afforded to the debtor under 31 U.S.C. 3711(f)
have been fulfilled. The FCA shall notify each consumer reporting
agency, to which a claim was disclosed, when the debt has been
satisfied.
Sec. 608.815 Credit report.
In order to aid the FCA in making appropriate determinations
regarding the collection and compromise of claims; the collection of
charges for interest, administrative costs, and penalties; the use of
administrative offset; the use of other collection methods; and the
likelihood of collecting the claim, the FCA may institute, consistent
with the provisions of the Fair Credit Reporting Act (15 U.S.C. 1681,
et seq.), a credit investigation of the debtor immediately following a
determination that the claim exists.
Subpart B--Administrative Offset
Sec. 608.820 Applicability.
(a) The provisions of this subpart shall apply to the collection of
debts by administrative [or salary] offset under 31 U.S.C. 3716, 5
U.S.C. 5514, or other statutory or common law.
(b) Offset shall not be used to collect a debt more than 10 years
after the Government's right to collect the debt first accrued, unless
facts material to the Government's right to collect the debt were not
known and could not reasonably have been known by the official or
officials of the Government who were charged with the responsibility of
discovering and collecting such debt.
(c) Offset shall not be used with respect to:
(1) Debts owed by other agencies of the United States or by any
State or local government;
(2) Debts arising under or payments made under the Social Security
Act, the Internal Revenue Code of 1986, as amended, or tariff laws of
the United States; or
(3) Any case in which collection by offset of the type of debt
involved is explicitly provided for or prohibited by another statute.
(d) Unless otherwise provided by contract or law, debts or payments
which are not subject to offset under 31 U.S.C. 3716 or 5 U.S.C. 5514
may be collected by offset if such collection is authorized under
common law or other applicable statutory authority.
Sec. 608.821 Collection by offset.
(a) Collection of a debt by administrative [or salary] offset shall
be accomplished in accordance with the provisions of these regulations,
of 4 CFR 102.3, and 5 CFR part 550, subpart K. It is not necessary for
the debt to be reduced to judgment or to be undisputed for offset to be
used.
(b) The Chairman, or designee of the Chairman, may determine that
it is feasible to collect a debt to the United States by offset against
funds payable to the debtor.
(c) The feasibility of collecting a debt by offset will be
determined on a case-by-case basis. This determination shall be made by
considering all relevant factors, including the following:
(1) The degree to which the offset can be accomplished in
accordance with law. This determination should take into consideration
relevant statutory, regulatory, and contractual requirements;
(2) The degree to which the FCA is certain that its determination
of the existence and amount of the debt is correct;
(3) The practicality of collecting the debt by offset. The cost, in
time and money, of collecting the debt by offset and the amount of
money which can reasonably be expected to be recovered through offset
will be relevant to this determination; and
(4) Whether the use of offset will substantially interfere with or
defeat the purpose of a program authorizing payments against which the
offset is contemplated. For example, under a grant program in which
payments are made in advance of the grantee's performance, the
imposition of offset against such a payment may be inappropriate.
(d) The collection of a debt by offset may not be feasible when
there are circumstances which would indicate that the likelihood of
collection by offset is less than probable.
(e) The offset will be effected 31 days after the debtor receives a
Notice of Intent to Collect by Administrative Offset (or Notice of
Intent to Collect by Salary Offset if the offset is a salary offset),
or upon the expiration of a stay of offset, unless the FCA determines
under Sec. 608.824 that immediate action is necessary.
(f) If the debtor owes more than one debt, amounts recovered
through offset may be applied to them in any order. Applicable statutes
of limitation would be considered before applying the amounts recovered
to any debts owed.
Sec. 608.822 Notice requirements before offset.
(a) Except as provided in Sec. 608.824, the FCA will provide the
debtor with 30 calendar days' written notice that unpaid debt amounts
shall be collected by administrative [or salary] offset (Notice of
Intent to Collect by Administrative [or Salary] Offset) before the FCA
imposes offset against any money that is to be paid to the debtor.
(b) The Notice of Intent to Collect by Administrative [or Salary]
Offset shall be delivered to the debtor by hand or by mail and shall
provide the following information:
(1) The amount of the debt, the date it was incurred, and the facts
upon which the determination of indebtedness was made;
(2) In the case of an administrative offset, the payment due date,
which shall be 30 calendar days from the date of mailing or hand
delivery of the Notice;
(3) In the case of a salary offset: (i) The FCA's intention to
collect the debt by means of deduction from the employee's current
disposable pay account until the debt and all accumulated interest is
paid in full; and
(ii) The amount, frequency, proposed beginning date, and duration
of the intended deductions;
(4) The right of the debtor to inspect and copy the records of the
FCA related to the claim or to receive copies if personal inspection is
impractical. The debtor shall be informed that the debtor shall be
assessed for the cost of copying the documents in accordance with
Sec. 608.807;
(5) The right of the debtor to obtain a review of, and to request a
hearing, on the FCA's determination of indebtedness, the propriety of
collecting the debt by offset, and, in the case of salary offset, the
propriety of the proposed repayment schedule (i.e., the percentage of
disposable pay to be deducted each pay period). The debtor shall be
informed that to obtain a review, the debtor shall deliver a written
request for a review to the FCA official named in the Notice, within 15
calendar days after the debtor's receipt of the Notice. In the case of
a salary offset, the debtor shall also be informed that the review
shall be conducted by an official arranged for by the FCA who shall be
a hearing official not under the control of the Chairman of the Farm
Credit Administration, or an administrative law judge;
(6) That the filing of a petition for hearing within 15 calendar
days after receipt of the Notice will stay the commencement of
collection proceedings;
(7) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 days
after the filing of the written request for review unless the employee
requests, and the hearing official grants, a delay in the proceedings;
(8) The right of the debtor to offer to enter into a written
agreement with the FCA to repay the amount of the claim. The debtor
shall be informed that the acceptance of such an agreement is
discretionary with the FCA;
(9) That charges for interest, penalties, and administrative costs
shall be assessed against the debtor, in accordance with 31 U.S.C.
3717, if payment is not received by the payment due date. The debtor
shall be informed that such assessments must be made unless excused in
accordance with the Federal Claims Collection Standards (4 CFR parts
103 and 104);
(10) The amount of accrued interest and the amount of any other
penalties or administrative costs which may have been added to the
principal debt;
(11) That if the debtor has not entered into an agreement with the
FCA to pay the debt, has not requested the FCA to review the debt, or
has not paid the debt prior to the date on which the offset is to be
imposed, the FCA intends to collect the debt by administrative [or
salary] offset or by requesting other Federal agencies for assistance
in collecting the debt by offset. The debtor shall be informed that the
offset shall be imposed against any funds that might become available
to the debtor, until the principal debt and all accumulated interest
and other charges are paid in full;
(12) The date on which the offset will be imposed, which shall be
31 calendar days from the date of mailing or hand delivery of the
Notice. The debtor shall be informed that the FCA reserves the right to
impose an offset prior to this date if the FCA determines that
immediate action is necessary;
(13) That any knowingly false or frivolous statements,
representations, or evidence may subject the debtor to:
(i) Penalties under the False Claims Act, sections 3729 through
3731 of title 31, United States Code, or any other applicable statutory
authority;
(ii) Criminal penalties under sections 286, 287, 1001, and 1002 of
title 18, United States Code, or any other applicable statutory
authority; and, with regard to employees,
(iii) Disciplinary procedures appropriate under chapter 75 of title
5, United States Code; part 752 of title 5, Code of Federal
Regulations, or any other applicable statute or regulation;
(14) The name and address of the FCA official to whom the debtor
shall send all correspondence relating to the debt or the offset;
(15) Any other rights and remedies available to the debtor under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt,
which are later waived or found not owed to the United States, will be
promptly refunded to the employee; and
(17) Other information, as may be appropriate.
(c) When the procedural requirements of this section have been
provided to the debtor in connection with the same debt or under some
other statutory or regulatory authority, the FCA is not required to
duplicate those requirements before effecting offset.
Sec. 608.823 Right to review of claim.
(a) If the debtor disputes the claim, the debtor may request a
review of the FCA's determination of the existence of the debt, the
amount of the debt, the propriety of collecting the debt by offset, and
in the case of salary offset, the propriety of the proposed repayment
schedule. If only part of the claim is disputed, the undisputed portion
should be paid by the payment due date.
(b) To obtain a review, the debtor shall submit a written request
for review to the FCA official named in the Notice of Intent to Collect
by Administrative [or Salary] Offset within 15 calendar days after
receipt of the notice. The debtor's written request for review shall
state the basis on which the claim is disputed and shall specify
whether the debtor requests an oral hearing or a review of the written
record of the claim. If an oral hearing is requested, the debtor shall
explain in the request why the matter cannot be resolved by a review of
the documentary evidence alone.
(c) The FCA shall promptly notify the debtor, in writing, that the
FCA has received the request for review. The FCA shall conduct its
review of the claim in accordance with Sec. 608.810.
(d) The FCA's review of the claim, under this section, shall
include providing the debtor with a reasonable opportunity for an oral
hearing if:
(1) An applicable statute authorizes or requires the FCA to
consider waiver of the indebtedness, the debtor requests waiver of the
indebtedness, and the waiver determination turns on an issue of
credibility or veracity; or
(2) The debtor requests reconsideration of the debt and the FCA
determines that the question of the indebtedness cannot be resolved by
reviewing the documentary evidence; for example, when the validity of
the debt turns on an issue of credibility or veracity.
(e) A debtor waives the right to a hearing and will have his or her
debt offset in accordance with the proposed offset schedule if the
debtor:
(1) Fails to file a written request for review within the timeframe
set forth in paragraph (b) of this section, unless the FCA determines
that the delay was the result of circumstances beyond his or her
control; or
(2) Fails to appear at an oral hearing of which he or she was
notified unless the hearing official determines that the failure to
appear was due to circumstances beyond the employee's control.
(f) Upon completion of its review of the claim, the FCA shall
notify the debtor whether the FCA's determination of the existence or
amount of the debt has been sustained, amended, or canceled. The
notification shall include a copy of the written decision issued by the
hearing official, pursuant to Sec. 608.810(e). If the FCA's
determination is sustained, this notification shall contain a provision
which states that the FCA intends to collect the debt by offset or by
requesting other Federal agencies for assistance in collecting the
debt.
(g) When the procedural requirements of this section have been
provided to the debtor in connection with the same debt or under some
other statutory or regulatory authority, the FCA is not required to
duplicate those requirements before effecting offset.
Sec. 608.824 Waiver of procedural requirements.
(a) The FCA may impose offset against a payment to be made to a
debtor prior to the completion of the procedures required by this part,
if:
(1) Failure to impose the offset would substantially prejudice the
Government's ability to collect the debt; and
(2) The timing of the payment against which the offset will be
imposed does not reasonably permit the completion of those procedures.
(b) The procedures required by this part shall be complied with
promptly after the offset is imposed. Amounts recovered by offset,
which are later found not to be owed to the Government, shall be
promptly refunded to the debtor.
Sec. 608.825 Coordinating offset with other Federal agencies.
(a)(1) Any creditor agency which requests the FCA to impose an
offset against amounts owed to the debtor shall submit to the FCA a
claim certification which meets the requirements of this paragraph. The
FCA shall submit the same certification to any agency that the FCA
requests to effect an offset.
(2) The claim certification shall be in writing. It shall certify
the debtor owes the debt and that all of the applicable requirements of
31 U.S.C. 3716 and 4 CFR part 102 have been met. If the intended offset
is to be a salary offset, a claim certification shall instead certify
that the debtor owes the debt and that the applicable requirements of 5
U.S.C. 5514 and 5 CFR part 550, subpart K, have been met.
(3) A certification that the debtor owes the debt shall state the
amount of the debt, the factual basis supporting the determination of
indebtedness, and the date on which payment of the debt was due. A
certification that the requirements of 31 U.S.C. 3716 and 4 CFR part
102 have been met shall include a statement that the debtor has been
sent a notice of Intent to Collect by Administrative Offset at least 31
calendar days prior to the date of the intended offset or a statement
that pursuant to 4 CFR 102.3(b)(5) said Notice was not required to be
sent. A certification that the requirements of 5 U.S.C. 5514 and 5 CFR
part 550, subpart K, have been met shall include a statement that the
debtor has been sent a Notice of Intent to Collect by Salary Offset at
least 31 calendar days prior to the date of the intended offset or a
statement that pursuant to 4 CFR 102.3(b)(5) said Notice was not
required to be sent.
(b)(1) The FCA shall not effect an offset requested by another
Federal agency without first obtaining the claim certification required
by paragraph (a) of this section. If the FCA receives an incomplete
claim certification, the FCA shall return the claim certification with
notice that a claim certification which complies with the requirements
of paragraph (a) of this section must be submitted to the FCA before
the FCA will consider effecting an offset.
(2) The FCA may rely on the information contained in the claim
certification provided by a requesting creditor agency. The FCA is not
authorized to review a creditor agency's determination of indebtedness.
(c) Only the creditor agency may agree to enter into an agreement
with the debtor for the repayment of the claim. Only the creditor
agency may agree to compromise, suspend, or terminate collection of the
claim.
(d) The FCA may decline, for good cause, a request by another
agency to effect an offset. Good cause includes that the offset might
disrupt, directly or indirectly, essential FCA operations. The refusal
and the reasons shall be sent in writing to the creditor agency.
Sec. 608.826 Stay of offset.
(a)(1) When a creditor agency receives a debtor's request for
inspection of agency records, the offset is stayed for 10 calendar days
beyond the date set for the record inspection.
(2) When a creditor agency receives a debtor's offer to enter into
a repayment agreement, the offset is stayed until the debtor is
notified as to whether the proposed agreement is acceptable.
(3) When a review is conducted, the offset is stayed until the
creditor agency issues a final written decision.
(b) When offset is stayed, the amount of the debt and the amount of
any accrued interest or other charges will be withheld from payments to
the debtor. The withheld amounts shall not be applied against the debt
until the stay expires. If withheld funds are later determined not to
be subject to offset, they will be promptly refunded to the debtor.
(c) If the FCA is the creditor agency and the offset is stayed, the
FCA will immediately notify an offsetting agency to withhold the
payment pending termination of the stay.
Sec. 608.827 Offset against amounts payable from Civil Service
Retirement and Disability Fund.
The FCA may request that monies payable to a debtor from the Civil
Service Retirement and Disability Fund be administratively offset to
collect debts owed to the FCA by the debtor. The FCA must certify that
the debtor owes the debt, the amount of the debt, and that the FCA has
complied with the requirements set forth in this part, 4 CFR 102.3, and
the Office of Personnel Management regulations. The request shall be
submitted to the official designated in the Office of Personnel
Management regulations to receive the request.
Subpart C--Offset Against Salary
Sec. 608.835 Purpose.
The purpose of this subpart is to implement section 5 of the Debt
Collection Act of 1982 (Pub. L. 97-365)(5 U.S.C. 5514), which
authorizes the collection of debts owed by Federal employees to the
Federal Government by means of salary offsets. These regulations
provide procedures for the collection of a debt owed to the Government
by the imposition of a salary offset against amounts payable to a
Federal employee as salary. These regulations are consistent with the
regulations on salary offset published by the Office of Personnel
Management, codified in 5 CFR part 550, subpart K. Since salary offset
is a type of administrative offset, this subpart supplements subpart B.
Sec. 608.836 Applicability of regulations.
(a) These regulations apply to the following cases:
(1) Where the FCA is owed a debt by an individual currently
employed by another agency;
(2) Where the FCA is owed a debt by an individual who is currently
employed by the FCA; or
(3) Where the FCA currently employs an individual who owes a debt
to another Federal agency. Upon receipt of proper certification from
the creditor agency, the FCA will offset the debtor-employee's salary
in accordance with these regulations.
(b) These regulations do not apply to the following:
(1) Debts or claims rising under the Internal Revenue Code of 1986,
as amended (26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C.
301 et seq.); the tariff laws of the United States; or to any case
where collection of a debt by salary offset is explicitly provided for
or prohibited by another statute (e.g., travel advances in 5 U.S.C.
5705 and employee training expenses in 5 U.S.C. 4108).
(2) Any adjustment to pay arising from 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 four pay periods or less.
(3) A claim which has been outstanding for more than 10 years after
the creditor agency's right to collect the debt first accrued, unless
facts material to the Government's right to collect were not known and
could not reasonably have been known by the official or officials
charged with the responsibility for discovery and collection of such
debts.
Sec. 608.837 Definitions.
In this subpart, the following definitions shall apply:
(a) Agency means:
(1) An executive agency as defined by 5 U.S.C. 105, including the
United States Postal Service and the United States Postal Rate
Commission;
(2) A military department as defined in 5 U.S.C. 102;
(3) An agency or court of the judicial branch, including a court as
defined in 28 U.S.C. 610, the District Court for the Northern Mariana
Islands, and the Judicial Panel on Multi-district Litigation;
(4) An agency of the legislative branch, including the United
States Senate and the United States House of Representatives; or
(5) Other independent establishments that are entities of the
Federal Government.
(b) Disposable pay means, for an officially established pay
interval, that part of current basic pay, special pay, incentive pay,
retired pay, retainer pay, or, in the case of an employee not entitled
to basic pay, other authorized pay, remaining after the deduction of
any amount required by law to be withheld. The FCA shall allow the
deductions described in 5 CFR 581.105 (b) through (f).
(c) Employee means a current employee of the FCA or other agency,
including a current member of the Armed Forces or Reserve of the Armed
Forces of the United States.
(d) Waiver means the cancellation, remission, forgiveness, or
nonrecovery of a debt allegedly owed by an employee to the FCA or
another agency as permitted or required by 5 U.S.C. 5584 or 8346(b), 10
U.S.C. 2774, 32 U.S.C. 716, or any other law.
Sec. 608.838 Waiver requests and claims to the General Accounting
Office.
(a) The regulations contained in this subpart do not preclude an
employee from requesting a waiver of an overpayment under 5 U.S.C. 5584
or 8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or in any way questioning
the amount or validity of a debt by submitting a subsequent claim to
the General Accounting Office in accordance with the procedures
prescribed by the General Accounting Office.
(b) These regulations also do not preclude an employee from
requesting a waiver pursuant to other statutory provisions pertaining
to the particular debts being collected.
Sec. 608.839 Procedures for salary offset.
(a) The Chairman, or designee of the Chairman, shall determine the
amount of an employee's disposable pay and the amount to be deducted
from the employee's disposable pay at regular pay intervals.
(b) Deductions shall begin within three official pay periods
following the date of mailing or delivery of the Notice of Intent to
Collect by Salary Offset.
(c)(1) If the amount of the debt is equal to or is less than 15
percent of the employee's disposable pay, such debt should be collected
in one lump-sum deduction.
(2) If the amount of the debt is not collected in one lump-sum
deduction, the debt shall be collected in installment deductions over a
period of time not greater than the anticipated period of employment.
The size and frequency of installment deductions will bear a reasonable
relation to the size of the debt and the employee's ability to pay.
However, the amount deducted from any pay period will not exceed 15
percent of the employee's disposable pay for that period, unless the
employee has agreed in writing to the deduction of a greater amount.
(3) A deduction exceeding the 15-percent disposable pay limitation
may be made from any final salary payment pursuant to 31 U.S.C. 3716 in
order to liquidate the debt, whether the employee is being separated
voluntarily or involuntarily.
(4) Whenever an employee subject to salary offset is separated from
the FCA and the balance of the debt cannot be liquidated by offset of
the final salary check pursuant to 31 U.S.C. 3716, the FCA may offset
any later payments of any kind against the balance of the debt.
(d) In instances where two or more creditor agencies are seeking
salary offsets against current employees of the FCA or where two or
more debts are owed to a single creditor agency, the FCA, at its
discretion, may determine whether one or more debts should be offset
simultaneously within the 15-percent limitation. Debts owed to the FCA
should generally take precedence over debts owed to other agencies.
Sec. 608.840 Refunds.
(a) In instances where the FCA is the creditor agency, it shall
promptly refund any amounts deducted under the authority of 5 U.S.C.
5514 when:
(1) The debt is waived or otherwise found not to be owed to the
United States (unless expressly prohibited by statute or regulations);
or
(2) An administrative or judicial order directs the FCA to make a
refund.
(b) Unless required or permitted by law or contract, refunds under
this section shall not bear interest.
Sec. 608.841 Requesting current paying agency to offset salary.
(a) To request a paying agency to impose a salary offset against
amounts owed to the debtor, the FCA shall provide the paying agency
with a claim certification which meets the requirements set forth in
Sec. 608.825(a). The FCA shall also provide the paying agency with a
repayment schedule determined under the provisions of Sec. 608.839 or
in accordance with a repayment agreement entered into with the debtor.
(b) If the employee separates from the paying agency before the
debt is paid in full, the paying agency shall certify the total amount
collected on the debt. A copy of this certification shall be sent to
the employee and a copy shall be sent to the FCA. If the paying agency
is aware that the employee is entitled to payments from the Civil
Service Retirement and Disability Fund, or other similar payments, it
must provide written notification to the agency responsible for making
such payments that the debtor owes a debt (including the amount) and
that the provisions of this section have been fully complied with.
However, the FCA must submit a properly certified claim to the agency
responsible for making such payments before the collection can be made.
(c) When an employee transfers to another paying agency, the FCA is
not required to repeat the due process procedures set forth in 5 U.S.C.
5514 and this part to resume the collection. The FCA shall, however,
review the debt upon receiving the former paying agency's notice of the
employee's transfer to make sure the collection is resumed by the new
paying agency.
(d) If a special review is conducted pursuant to Sec. 608.811 and
results in a revised offset or repayment schedule, the FCA shall
provide a new claim certification to the paying agency.
Sec. 608.842 Responsibility of the FCA as the paying agency.
(a) When the FCA receives a claim certification from a creditor
agency, deductions should be scheduled to begin at the next officially
established pay interval. The FCA shall send the debtor written notice
which provides:
(1) That the FCA has received a valid claim certification from the
creditor agency;
(2) The date on which salary offset will begin;
(3) The amount of the debt; and
(4) The amount of such deductions.
(b) If, after the creditor agency has submitted the claim
certification to the FCA, the employee transfers to a different agency
before the debt is collected in full, the FCA must certify the total
amount collected on the debt. The FCA shall send a copy of this
certification to the creditor agency and a copy to the employee. If the
FCA is aware that the employee is entitled to payments from the Civil
Service Retirement Fund and Disability Fund, or other similar payments,
it shall provide written notification to the agency responsible for
making such payments that the debtor owes a debt (including the
amount).
Sec. 608.843 Nonwaiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under this subpart shall not be construed as a waiver
of any rights the employee may have under 5 U.S.C. 5514 or any other
provisions of a written contract or law unless there are statutory or
contractual provisions to the contrary.
Dated: March 10, 1994.
Curtis M. Anderson,
Secretary, Farm Credit Administration Board.
[FR Doc. 94-6562 Filed 3-18-94; 8:45 am]
BILLING CODE 6705-01-P
