cfr_sections
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 34:34:1.1.1.1.10.0.1.1 | 34 | Education | 15 | PART 15—UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS | § 15.1 Uniform relocation assistance and real property acquisition. | ED | [52 FR 48021, Dec. 17, 1987] | Regulations and procedures for complying with the Uniform Relocation Assistance Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42 U.S.C. 4601) as amended by the SUrface Transportation and Uniform Relocation Assistance Act of 1987 (Title IV of Pub. L. 100-17, 101 Stat. 264-255, 42 U.S.C. 4601 note) are set forth in 49 CFR part 24. | |||||||
| 34:34:1.1.1.1.11.1.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | A | Subpart A—General | § 21.1 Equal Access to Justice Act. | ED | (a) The Equal Access to Justice Act (the Act) provides for the award of fees and other expenses to applicants that— (1) Are prevailing parties in adversary adjudications before the Department of Education; and (2) Meet all other conditions of eligibility contained in this part. (b) An eligible applicant, as described in paragraph (a) of this section, is entitled to receive an award unless— (1) The adjudicative officer, the Civil Rights Reviewing Authority (CRRA), or the Secretary on review, determines that— (i) The Department's position was substantially justified; or (ii) Special circumstances make an award unjust; or (2) The adversary adjudication is under judicial review, in which case the applicant may receive an award only as described in § 21.11. (c) The determination under paragraph (b)(1)(i) of this section is based on the administrative record, as a whole, made during the adversary adjudication for which fees and other expenses are sought. | ||||||
| 34:34:1.1.1.1.11.1.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | A | Subpart A—General | § 21.2 Time period when the Act applies. | ED | The Act applies to any adversary adjudication covered under this part pending or commenced before the Department on or after August 5, 1985. | ||||||
| 34:34:1.1.1.1.11.1.1.3 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | A | Subpart A—General | § 21.3 Definitions. | ED | The following definitions apply to this part: Act means the Equal Access to Justice Act. Adjudicative officer means the Administrative Law Judge, hearing examiner, or other deciding official who presided at the underlying adversary adjudication. Adversary adjudication means a proceeding— (1) Conducted by the Department for the formulation of an order or decision arising from a hearing on the record under the Administrative Procedure Act (5 U.S.C. 554); (2) Listed in § 21.10; and (3) In which the position of the Department was represented by counsel or other representative who entered an appearance and participated in the proceeding. Application subject to the jurisdiction of the CRRA means an application for fees and expenses based on an underlying proceeding conducted under 34 CFR parts 100, 101, 104, 106, or 110. CRRA means the Civil Rights Reviewing Authority, the reviewing authority established by the Secretary to consider applications under 34 CFR parts 100, 101, 104, 106, and 110. Department means the U.S. Department of Education. Department's counsel means counsel for the Department of Education or another Federal agency. Employee means: (1) A person who regularly performs services for an applicant— (i) For remuneration; and (ii) Under the applicant's direction and control. (2) A part-time or seasonal employee who performs services for an applicant— (i) For renumeration; and (ii) Under the applicant's direction and control. Fees and other expenses means an eligible applicant's reasonable fees and expenses— (1) Related to the issues on which it was the prevailing party in the adversary adjudication; and (2) Further described in §§ 21.33 and 21.50. Party means a “person” or a “party” as those terms are defined in the Administrative Procedure Act (5 U.S.C. 551(3)), including an individual, partnership, corporation, association, unit of local government, or public or private organization that meets the requirements in § 21.20. The term does not include an agency of the Federal Go… | ||||||
| 34:34:1.1.1.1.11.2.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | B | Subpart B—Which Adversary Adjudications Are Covered? | § 21.10 Adversary adjudications covered by the Act. | ED | The Act covers adversary adjudications under section 554 of title 5 of the United States Code. These include the following: (a) Compliance proceedings under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq. ). (b) Compliance and enforcement proceedings under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq. ). (c) Compliance proceedings under title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq. ). (d) Compliance proceedings under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). (e) Withholding proceedings under section 1001 of Pub. L. 100-297 (Hawkins-Stafford) (20 U.S.C. 2833). (f) Proceedings under any of the following: (1) Section 5(g) of Pub. L. 81-874 (Financial Assistance for Local Educational Agencies in Areas Affected by Federal Activity) (20 U.S.C. 240(g)). (2) Sections 6(c) or 11(a) of Pub. L. 81-815 (an act relating to the construction of school facilities in areas affected by Federal activities and for other purposes) (20 U.S.C. 636(c) or 641(a)). (3) Section 6 of Pub. L. 95-563 (Contract Disputes Act of 1978) (41 U.S.C. 605). (4) Part E of the General Education Provisions Act (20 U.S.C. 1234 et seq. ). (g) Other adversary adjudications that fall within the coverage of the Act. | ||||||
| 34:34:1.1.1.1.11.2.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | B | Subpart B—Which Adversary Adjudications Are Covered? | § 21.11 Effect of judicial review of adversary adjudication. | ED | If a court reviews the underlying decision of an adversary adjudication covered under this part, an award of fees and other expenses may be made only under 28 U.S.C. 2412 (awards in certain judicial proceedings). | ||||||
| 34:34:1.1.1.1.11.3.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | C | Subpart C—How Is Eligibility Determined? | § 21.20 Types of eligible applicants. | ED | The following types of parties that prevail in adversary adjudications are eligible to apply under the Act for an award of fees and other expenses: (a) An individual who has a net worth of not more than $2 million. (b) Any owner of an unincorporated business who has— (1) A net worth of not more than $7 million, including both personal and business interests; and (2) Not more than 500 employees. (c) A charitable or other tax-exempt organization— (1) As described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)); and (2) Having not more than 500 employees. (d) A cooperative association— (1) As defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141(a)); and (2) Having not more than 500 employees. (e) Any other partnership, corporation, association, unit of local government, or organization that has— (1) A net worth of not more than $7 million; and (2) Not more than 500 employees. | ||||||
| 34:34:1.1.1.1.11.3.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | C | Subpart C—How Is Eligibility Determined? | § 21.21 Determination of net worth and number of employees. | ED | (a) The adjudicative officer shall determine an applicant's net worth and number of employees as of the date the adversary adjudication was initiated. (b) In determining eligibility, the adjudicative officer shall include the net worth and number of employees of the applicant and all of the affiliates of the applicant. (c) For the purposes of paragraph (b) of this section, the adjudicative officer shall consider the following as an affiliate: (1) Any individual, corporation, or other entity that directly or indirectly owns or controls a majority of the voting shares or other interest of the applicant; (2) Any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest; and (3) Any entity with a financial relationship to the applicant that, in the determination of the adjudicative officer, constitutes an affiliation for the purposes of paragraph (b) of this section. (d) In determining the number of employees of an applicant and its affiliates, the adjudicative officer shall count part-time employees on a proportional basis. | ||||||
| 34:34:1.1.1.1.11.3.1.3 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | C | Subpart C—How Is Eligibility Determined? | § 21.22 Applicants representing others. | ED | If an applicant is a party in an adversary adjudication primarily on behalf of one or more persons or entities that are ineligible under this part, then the applicant is not eligible for an award. | ||||||
| 34:34:1.1.1.1.11.4.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | D | Subpart D—How Does One Apply for an Award? | § 21.30 Time for filing application. | ED | (a) In order to be considered for an award under this part, an applicant may file its application when it prevails in an adversary adjudication—or in a significant and discrete substantive portion of an adversary adjudication—but no later than 30 days after the Department's final disposition of the adversary adjudication. (b) In the case of a review or reconsideration of a decision in which an applicant has prevailed or believes it has prevailed, the adjudicative officer shall stay the proceedings on the application pending final disposition of the underlying issue. (c) For purposes of this part, final disposition of the adversary adjudication means the latest of— (1) The date on which an initial decision or other recommended disposition of the merits of the proceeding by an adjudicative officer becomes administratively final; (2) The date of an order disposing of any petitions for reconsideration of the final order in the adversary adjudication; (3) If no petition for reconsideration is filed, the last date on which that type of petition could have been filed; or (4) The date of a final order or any other final resolution of a proceeding—such as a settlement or voluntary dismissal—that is not subject to a petition for reconsideration. | ||||||
| 34:34:1.1.1.1.11.4.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | D | Subpart D—How Does One Apply for an Award? | § 21.31 Contents of application. | ED | (a) In its application for an award of fees and other expenses, an applicant shall include the following: (1) Information adequate to show that the applicant is a prevailing party in an adversary adjudication or in a significant and discrete substantive portion of an adversary adjudication. (2) A statement that the adversary adjudication is covered by the Act according to § 21.10. (3) An allegation that the position of the Department was not substantially justified, including a description of the specific position. (4) Unless the applicant is a qualified tax-exempt organization or a qualified agricultural cooperative association, information adequate to show that the applicant qualifies under the requirements of §§ 21.20 and 21.21 regarding net worth. The information, if applicable, shall include a detailed exhibit of the net worth of the applicant—and its affiliates as described in § 21.21—as of the date the proceeding was initiated. (5)(i) The total amount of fees and expenses sought in the award; and (ii) An itemized statement of— (A) Each expense; and (B) Each fee, including the actual time expended for this fee and the rate at which the fee was computed. (6) A written verification under oath or affirmation or under penalty of perjury from each attorney representing the applicant stating— (i) The rate at which the fee submitted by the attorney was computed; and (ii) The actual time expended for the fee. (7) A written verification under oath, affirmation, or under penalty of perjury that the information contained in the application and any accompanying material is true and complete to the best of the applicant's information and belief. (b) The adjudicative officer may require the applicant to submit additional information. | ||||||
| 34:34:1.1.1.1.11.4.1.3 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | D | Subpart D—How Does One Apply for an Award? | § 21.32 Confidentiality of information about net worth. | ED | (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). | ||||||
| 34:34:1.1.1.1.11.4.1.4 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | D | Subpart D—How Does One Apply for an Award? | § 21.33 Allowable fees and expenses. | ED | (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). | ||||||
| 34:34:1.1.1.1.11.5.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | E | Subpart E—What Procedures Are Used in Considering Applications? | § 21.40 Filing and service of documents. | ED | (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 § 21.40(b)(1), the CRRA shall direct the adjudicative officer to issue an initial decision within 30 days of the completion of the proceedings on the application. The adjudicative officer shall conduct proceedings under the procedures of §§ 21.41-21.44. | ||||||
| 34:34:1.1.1.1.11.5.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | E | Subpart E—What Procedures Are Used in Considering Applications? | § 21.41 Answer to application. | ED | (a)(1) Within 30 days after receiving an application for an award under this part, the Department's counsel may file an answer to the application. (2) The Department's counsel may request an extension of time for filing the Department's answer. (3) The adjudicative officer shall grant the request for an extension if the Department's counsel shows good cause for the request. (b)(1) The Department's answer must— (i) Explain any objections to the award requested; and (ii) Identify the facts relied on in support of the position of the Department. (2) If the answer is based on any alleged facts not in the record of the adversary adjudication, the Department's counsel shall include with the answer either— (i) Supporting affidavits; or (ii) A request for further proceedings under § 21.44. (c)(1) If the Department's counsel and the applicant believe that the issues in the application can be settled, they may jointly file a statement of their intent to negotiate a settlement. (2)(i) The filing of a statement of an intent to negotiate extends the time for filing an answer for 30 days. (ii) The adjudicative officer shall grant further extensions if the Department's counsel and the applicant jointly request those extensions. | ||||||
| 34:34:1.1.1.1.11.5.1.3 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | E | Subpart E—What Procedures Are Used in Considering Applications? | § 21.42 Reply. | ED | (a) Within 15 days after receiving an answer, an applicant may file a reply. (b) If the applicant's reply is based on any alleged facts not in the record of the adversary adjudication, the applicant shall include with the reply either— (1) Supporting affidavits; or (2) A request for further proceedings under § 21.44. | ||||||
| 34:34:1.1.1.1.11.5.1.4 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | E | Subpart E—What Procedures Are Used in Considering Applications? | § 21.43 Comments by other parties. | ED | (a) Any party to a proceeding, other than an applicant or the Department's counsel, may file comments on— (1) The application within 30 days after the applicant files the application; (2) The answer within 30 days after the counsel files the answer; or (3) Both, if the comments are filed within the time period specified in paragraphs (a)(1) and (a)(2) of this section. (b) The commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that further participation is necessary to permit full exploration of matters raised in the comments. | ||||||
| 34:34:1.1.1.1.11.5.1.5 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | E | Subpart E—What Procedures Are Used in Considering Applications? | § 21.44 Further proceedings. | ED | (a) The adjudicative officer shall make the determination of an award on the basis of the written record. (b)(1) However, the adjudicative officer may order further proceedings on his or her own initiative or at the request of the applicant or the Department's counsel. (2) The adjudicative officer may order further proceedings only if he or she determines that those proceedings are necessary for full and fair resolution of issues arising from the application. (3) If further proceedings are ordered, the adjudicative officer shall determine the scope of those proceedings, which may include such proceedings as informal conferences, oral arguments, additional written submissions, discovery, or an evidentiary hearing. (4) An adjudicative officer may not order discovery or an evidentiary hearing for the issue of whether or not the Department's position was substantially justified. (c) If the applicant or the Department's counsel requests the adjudicative officer to order further proceedings, the request must— (1) Specify the information sought or the disputed issues; and (2) Explain why the additional proceedings are necessary to obtain that information or resolve those issues. | ||||||
| 34:34:1.1.1.1.11.6.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.50 Standards for awards. | ED | (a) In determining the reasonableness of the amount sought as an award of fees and expenses for an attorney, agent, or expert witness, the adjudicative officer shall consider one or more of the following: (1)(i) If the attorney, agent, or expert witness is in private practice, his or her customary fee for similar services; or (ii) If the attorney, agent, or expert witness is an employee of the applicant, the fully allocated cost of the services. (2) The prevailing rate for similar services in the community in which the attorney, agent, or expert witness ordinarily performs services. (3) The time the attorney, agent, or expert witness actually spent on the applicant's behalf with respect to the adversary adjudication. (4) The time the attorney, agent, or expert witness reasonably spent in light of the difficulty or complexity of the covered issues in the adversary adjudication. (5) Any other factors that may bear on the value of the services provided by the attorney, agent, or expert witness. (b) The adjudicative officer may not grant— (1) An award for the fee of an attorney or agent in excess of $75.00 per hour; or (2) An award to compensate an expert witness in excess of the highest rate at which the Department pays expert witnesses. (c) The adjudicative officer may also determine whether— (1) Any study, analysis, engineering report, text, or project for which the applicant seeks an award was necessary for the preparation of the applicant's case in the adversary adjudication; and (2) The costs claimed by the applicant for this item or items are reasonable. (d) The adjudicative officer may not make an award to an eligible party if the adjudicative officer, the CRRA, or the Secretary on review finds that, based on a review of the administrative record as a whole— (1) The position of the Department, as defined in § 21.3, was substantially justified; or (2) Special circumstances make an award unjust. (e) The adjudicative officer may reduce or deny an award to the extent that the applicant engaged in … | ||||||
| 34:34:1.1.1.1.11.6.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.51 Initial decision in applications not subject to the CRRA. | ED | (a) In applications not subject to the jurisdiction of the CRRA, the adjudicative officer shall issue an initial decision on an application within 30 days after completion of proceedings on the application. (b) The initial decision must include the following: (1) Written findings, including sufficient supporting explanation, on— (i) The applicant's status as a prevailing party; (ii) The applicant's eligibility; (iii) Whether the position of the Department was substantially justified; (iv) Whether special circumstances make an award unjust; (v) If applicable, whether the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication; and (vi) Other factual issues raised in the adversary adjudication. (2) A statement of the amount awarded, including an explanation—with supporting information—for any difference between the amount requested by the applicant and the amount awarded. (3) A statement of the applicant's right to request review by the Secretary under § 21.54. (4) A statement of the applicant's right under § 21.56 to seek judicial review of the final award determination. (c) The explanation referred to in paragraph (b)(2) of this section may include— (1) Whether the amount requested was reasonable; and (2) The extent to which the applicant unduly or unreasonably protracted the adversary adjudication. | ||||||
| 34:34:1.1.1.1.11.6.1.3 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.52 Initial decision by an adjudicative officer in applications subject to CRRA jurisdiction. | ED | (a) If the application is subject to the jurisdiction of the CRRA, the adjudicative officer shall issue the initial decision within 30 days after completion of the proceedings. (b) The initial decision must include the information required under § 21.51(b). However, instead of the information required under § 21.51(b)(3), the initial decision must inform the applicant of— (1) Its right to request review by the CRRA; and (2) Its right to request review by the Secretary of the CRRA's final decision. (c) If the applicant or the Department's counsel appeals the adjudicative officer's initial decision, the appeal must be submitted to the CRRA, in writing, within 30 days after the initial decision is issued. (d) If the applicant or the Department's counsel does not appeal the adjudicative officer's initial decision to the CRRA and the Secretary does not decide to review the initial decision under § 21.54(a), the initial decision becomes the Department's final decision 60 days after it is issued by the officer. | ||||||
| 34:34:1.1.1.1.11.6.1.4 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.53 Final decision of the CRRA. | ED | (a) In an application subject to the jurisdiction of the CRRA, the CRRA shall, within 30 days after receipt of the written appeal— (1) Issue a final decision on the appeal of the adjudicative officer's initial decision; or (2) Remand the application to the adjudicative officer for further proceedings. (b) The CRRA shall review the initial decision on the basis of the written record of the proceedings on the application. This includes but is not limited to— (1) The written request; and (2) The adjudicative officer's findings as described in § 21.51(b). (c) The CRRA shall act on the review by either— (1) Issuing a final decision on the application; or (2) Remanding the application to the adjudicative officer for further proceedings. (d) If the CRRA issues a final decision, the CRRA's decision must include— (1) Written findings, including supporting explanation, on— (i) The applicant's status as a prevailing party; (ii) The applicant's eligibility; (iii) Whether the position of the Department was substantially justified; (iv) Whether special circumstances make an award unjust; (v) Whether the applicant engaged in conduct that unduly or unreasonably protracted the adversary adjudication; and (vi) Other factual issues raised in the adversary adjudication. (2) A statement of the amount awarded, including an explanation—with supporting information—for any difference between the amount requested by the applicant and the amount awarded. (3) A statement of the applicant's right to request review by the Secretary under § 21.54. (4) A statement of the applicant's right under § 21.56 to seek judicial review of the final award determination. (e) The explanation referred to in paragraph (d)(2) of this section may include— (1) Whether the amount requested was reasonable; and (2) The extent to which the applicant unduly or unreasonably protracted the adversary adjudication. | ||||||
| 34:34:1.1.1.1.11.6.1.5 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.54 Review by the Secretary. | ED | (a) The Secretary may decide to review— (1) An initial decision made by an adjudicative officer in a proceeding not subject to CRRA review; (2) An initial decision made by an adjudicative officer in a proceeding subject to CRRA review that was not appealed to the CRRA; or (3) A final decision made by the CRRA under § 21.53. (b)(1) The Secretary does not review a final decision made by an adjudicative officer of the General Services Administration Board of Contract Appeals. (2) The Secretary or a party to the proceedings may seek reconsideration of the final decision by an adjudicative officer of the General Services Administration Board of Contract Appeals on the fee application in accordance with 48 CFR 6101.32. (c) The Secretary decides to review a decision under § 21.54(a) either— (1) Upon receipt of a written request for review by an applicant or Department's counsel; or (2) Upon the Secretary's own motion. (d) If the applicant or the Department's counsel seeks a review, the request must be submitted to the Secretary, in writing, within 30 days of— (1) An initial decision in a proceeding not subject to CRRA review; or (2) A final decision of the CRRA. (e) The Secretary decides whether to accept or reject a request for review of an initial decision made by the adjudicative officer in a proceeding not subject to CRRA review or a final decision of the CRRA within 30 days after receipt of a request for review. (f) The Secretary may decide on his own motion to review a decision made under § 21.54(a) within 60 days of the initial decision by the adjudicative officer or a final decision of the CRRA. (g) If the Secretary decides to review the adjudicative officer's initial decision or the CRRA's final decision— (1) The Secretary reviews the adjudicative officer's initial decision or the CRRA's final decision on the basis of the written record of the proceedings on the application. This includes, but is not restricted to— (i) The written request for review; (ii) The adjudicative officer's findings as … | ||||||
| 34:34:1.1.1.1.11.6.1.6 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.55 Final decision if the Secretary does not review. | ED | If the Secretary takes no action under § 21.54— (a) The adjudicative officer's initial decision on the application becomes the Department's final decision 60 days after it is issued by the adjudicative officer; or (b) The CRRA's decision on the application becomes the Department's final decision 60 days after it is issued by the CRRA. | ||||||
| 34:34:1.1.1.1.11.6.1.7 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | F | Subpart F—How Are Awards Determined? | § 21.56 Judicial review. | ED | If the applicant is dissatisfied with the award determination in the final decision under §§ 21.52-21.55, the applicant may seek judicial review of that determination under 5 U.S.C. 504(c)(2) within 30 days after that determination was made. | ||||||
| 34:34:1.1.1.1.11.7.1.1 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | G | Subpart G—How Are Awards Paid? | § 21.60 Payment of awards. | ED | To receive payment, an applicant granted an award under the Act must submit to the Financial Management Service of the Department— (a) A request for payment signed by the applicant or its duly authorized agent; (b) A copy of the final decision granting the award; and (c) A statement that— (1) The applicant will not seek review of the decision in the United States courts; or (2) The process for seeking review of the award has been completed. | ||||||
| 34:34:1.1.1.1.11.7.1.2 | 34 | Education | 21 | PART 21—EQUAL ACCESS TO JUSTICE | G | Subpart G—How Are Awards Paid? | § 21.61 Release. | ED | If an applicant, its agent, or its attorney accepts payment of any award or settlement in conjunction with an application under this part, that acceptance— (a) Is final and conclusive with respect to that application; and (b) Constitutes a complete release of any further claim against the United States with respect to that application. | ||||||
| 34:34:1.1.1.1.12.1.4.1 | 34 | Education | 30 | PART 30—DEBT COLLECTION | A | Subpart A—General | § 30.1 What administrative actions may the Secretary take to collect a debt? | ED | [53 FR 33425, Aug. 30, 1988] | (a) The Secretary may take one or more of the following actions to collect a debt owed to the United States: (1) Collect the debt under the procedures authorized in the regulations in this part. (2) Refer the debt to the General Accounting Office for collection. (3) Refer the debt to the Department of Justice for compromise, collection, or litigation. (4) Take any other action authorized by law. (b) In taking any of the actions listed in paragraph (a) of this section, the Secretary complies with the requirements of the Federal Claims Collection Standards (FCCS) at 4 CFR parts 101-105 that are not inconsistent with the requirements of this part. (c) The Secretary may— (1) Collect the debt under the offset procedures in subpart C of this part; (2) Report a debt to a consumer reporting agency under the procedures in subpart C of this part; (3) Charge interest on the debt as provided in the FCCS; (4) Impose upon a debtor a charge based on the costs of collection as determined under subpart E of this part; (5) Impose upon a debtor a penalty for failure to pay a debt when due under subpart E of this part; (6) Compromise a debt, or suspend or terminate collection of a debt, under subpart F of this part; (7) Take any other actions under the procedures of the FCCS in order to protect the United States Government's interests; or (8) Use any combination of the procedures listed in this paragraph (c) as may be appropriate in a particular case. | |||||
| 34:34:1.1.1.1.12.1.4.2 | 34 | Education | 30 | PART 30—DEBT COLLECTION | A | Subpart A—General | § 30.2 On what authority does the Secretary rely to collect a debt under this part? | ED | [53 FR 33425, Aug. 30, 1988] | (a)(1) The Secretary takes an action referred to under § 30.1(a) in accordance with— (i) 31 U.S.C. chapter 37, subchapters I and II; (ii) Other applicable statutory authority; or (iii) The common law. (2) If collection of a debt in a particular case is not authorized under one of the authorities described in paragraph (a)(1) of this section, the Secretary may collect the debt under any other available authority under which collection is authorized. (b) The Secretary does not use a procedure listed in § 30.1(c) to collect a debt, or a certain type of debt, if— (1) The procedure is specifically prohibited under a Federal statute; or (2) A separate procedure other than the procedure described under § 30.1(c) is specifically required under— (i) A contract, grant, or other agreement; (ii) A statute other than 31 U.S.C. 3716; or (iii) Other regulations. | |||||
| 34:34:1.1.1.1.12.3.4.1 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.20 To what do §§ 30.20-30.31 apply? | ED | [51 FR 24099, July 1, 1986, as amended at 51 FR 35646, Oct. 7, 1986; 53 FR 33425, Aug. 30, 1988; 54 FR 43583, Oct. 26, 1989] | (a)(1)(i) Sections 30.20-30.31 establish the general procedures used by the Secretary to collect debts by administrative offset. (ii) The Secretary uses the procedures established under other regulations, including § 30.33, What procedures does the Secretary follow for IRS tax refund offsets?, 34 CFR part 31, Salary Offset for Federal Employees Who Are Indebted to the United States Under Programs Administrated by the Secretary of Education, and 34 CFR part 32, Salary Offset to Recover Overpayments of Pay or Allowances from Department of Education Employees, if the conditions requiring application of those special procedures exists. (2) The word “offset” is used in this subpart to refer to the collection of a debt by administrative offset. (b) The Secretary does not rely on 31 U.S.C. 3716 as authority for offset if: (1) The debt is owed by a State or local government; (2) The debt, or the payment against which offset would be taken, arises under the Social Security Act; (3) The debt is owed under: (i) The Internal Revenue Code of 1954; or (ii) The tariff laws of the United States; or (4) The right to collect the debt first accrued more than ten years before initiation of the offset. (c)(1) The Secretary may rely on 31 U.S.C. 3716 as authority for offset of a debt to which paragraph (b)(4) of this section would otherwise apply if 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 are charged with the responsibility to discover and collect the debt. (2) If paragraph (c)(1) of this section applies, the Secretary may rely on 31 U.S.C. 3716 as authority for offset up to 10 years after the date that the official or officials described in that paragraph first knew or reasonably should have known of the right of the United States to collect the debt. (d) The Secretary determines when the right to collect a debt first accrued under the existing law regarding accrual of debts such as 28 U.S.C. 241… | |||||
| 34:34:1.1.1.1.12.3.4.10 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.29 What procedures apply when the Secretary offsets to collect a debt owed another agency? | ED | The Secretary may initiate offset to collect a debt owed another Federal agency if: (a) An official of that agency certifies in writing: (1) That the debtor owes a debt to the United States; (2) The amount of the debt; and (3) That the agency has complied with 4 CFR 102.3; and (b) For offsets under 31 U.S.C. 3716, the Secretary makes an independent determination that the offset meets the standards under § 30.21(a)(2). | ||||||
| 34:34:1.1.1.1.12.3.4.11 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.30 What procedures apply when the Secretary requests another agency to offset a debt owed under a program or activity of the Department? | ED | (a) The Secretary may request another Federal agency to offset a debt owed under a program or activity of the Department if the Secretary certifies in writing to the other Federal agency: (1) That the debtor owes a debt to the United States; (2) The amount of the debt; and (3) That the Secretary has complied with 4 CFR 102.3. (b) Before providing the certification required under paragraph (a) of this section, the Secretary complies with the procedures in §§ 30.20-30.27. | ||||||
| 34:34:1.1.1.1.12.3.4.12 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.31 How does the Secretary apply funds recovered by offset if multiple debts are involved? | ED | If the Secretary collects more than one debt of a debtor by administrative offset, the Secretary applies the recovered funds to satisfy those debts based on the Secretary's determination of the best interests of the United States, determined by the facts and circumstances of the particular case. | ||||||
| 34:34:1.1.1.1.12.3.4.2 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.21 When may the Secretary offset a debt? | ED | (a) The Secretary may offset a debt if: (1) The debt is liquidated or certain in amount; and (2) Offset is feasible and not otherwise prohibited. (b)(1) Whether offset is feasible is determined by the Secretary in the exercise of sound discretion on a case-by-case basis, either: (i) For each individual debt or offset; or (ii) For each class of similar debts or offsets. (2) The Secretary considers the following factors in making this determination: (i) Whether offset can be practically and legally accomplished. (ii) Whether offset will further and protect the interests of the United States. (c) The Secretary may switch advance funded grantees to a reimbursement payment system before initiating an offset. | ||||||
| 34:34:1.1.1.1.12.3.4.3 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.22 What notice does the debtor receive before the commencement of offset? | ED | (a)(1) Except as provided in §§ 30.28 and 30.29, the Secretary provides a debtor with written notice of the Secretary's intent to offset before initiating the offset. (2) The Secretary mails the notice to the debtor at the current address of the debtor, as determined by the Secretary from information regarding the debt maintained by the Department. (b) The written notice informs the debtor regarding: (1) The nature and amount of the debt; (2) The Secretary's intent to collect the debt by offset; (3) The debtor's opportunity to: (i) Inspect and copy Department records pertaining to the debt; (ii) Obtain a review within the Department of the existence or amount of the debt; and (iii) Enter into a written agreement with the Secretary to repay the debt; (4) The date by which the debtor must request an opportunity set forth under paragraph (b)(3) of this section; and (5) The Secretary's decision, in appropriate cases, to switch the debtor from advance funding to a reimbursement payment system. (c)(1) In determining whether a debtor has requested an opportunity set forth under paragraph (b)(3) of this section in a timely manner, the Secretary relies on: (i) A legibly dated U.S. Postal Service postmark for the debtor's request; or (ii) A legibly stamped U.S. Postal service mail receipt for debtor's request. (2) The Secretary does not rely on either of the following as proof of mailing; (i) A private metered postmark. (ii) A mail receipt that is not dated by the U.S. Postal Service. The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method for proof of mailing, a debtor should check with its local post office. (d) If a debtor previously has been notified of the Secretary's intent to offset or offered an opportunity to take any of the actions set forth in paragraph (b)(3) of this section in connection with the same debt, the Secretary may offset without providing the debtor with an additional notice of intent or opportunity to take any of those actions under these… | ||||||
| 34:34:1.1.1.1.12.3.4.4 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.23 How must a debtor request an opportunity to inspect and copy records relating to a debt? | ED | [51 FR 24099, July 1, 1986, as amended at 51 FR 35646, Oct. 7, 1986] | (a) If a debtor wants to inspect and copy Department documents relating to the debt, the debtor must: (1) File a written request to inspect and copy the documents within 20 days after the date of the notice provided under § 30.22; and (2) File the request at the address specified in that notice. (b) A request filed under paragraph (a) of this section must contain: (1) All information provided to the debtor in the notice under § 30.22 or § 30.33(b) that identifies the debtor and the debt, including the debtor's Social Security number and the program under which the debt arose, together with any corrections of that identifying information; and (2) A reasonably specific identification of the records the debtor wishes to have available for inspection and copying. (c) The Secretary may decline to provide an opportunity to inspect and copy records if the debtor fails to request inspection and copying in accordance with this section. | |||||
| 34:34:1.1.1.1.12.3.4.5 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.24 What opportunity does the debtor receive to obtain a review of the existence or amount of a debt? | ED | [51 FR 24099, July 1, 1986, as amended at 51 FR 35647, Oct. 7, 1986] | (a) If a debtor wants a review within the Department of the issues identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii), the debtor must: (1) File a request for review within 20 days after the date of the notice provided under § 30.22; and (2) File a request at the address specified in that notice. (b) A request filed under paragraph (a) of this section must contain: (1) All information provided to the debtor in the notice under § 30.22 or § 30.33(b) that identifies the debtor and the particular debt, including the debtor's Social Security number and the program under which the debt arose, together with any corrections of that identifying information; and (2) An explanation of the reasons the debtor believes that the notice the debtor received under § 30.22 or § 30.33(b) inaccurately states any facts or conclusions relating to the debt. (c) The Secretary may decline to provide an opportunity for review of a debt if the debtor fails to request the review in accordance with this section. (d)(1) The debtor shall: (i) File copies of any documents relating to the issues identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii) that the debtor wishes the Secretary to consider in the review; (ii) File the documents at the address specified in that notice, and (iii) File the documents no later than: (A) 20 days after the date of the notice provided under § 30.22; or (B) If the debtor has requested an opportunity to inspect and copy records under § 30.23 within the time period specified in that section, 15 days after the date on which the Secretary makes available to the debtor the relevant, requested records. (2) The Secretary may decline to consider any reasons or documents that the debtor fails to provide in accordance with paragraphs (b) and (d) of this section. (e) If the Secretary bases the review on only the documentary evidence, the Secretary: (1) Reviews the documents submitted by the debtor and other relevant evidence; and (2) Notifies the debtor in writing of the Sec… | |||||
| 34:34:1.1.1.1.12.3.4.6 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.25 How may a debtor obtain an oral hearing? | ED | [51 FR 24099, July 1, 1986, as amended at 51 FR 35647, Oct. 7, 1986] | (a) If a debtor wants the Secretary to conduct the review requested under § 30.24 as an oral hearing, the debtor must file a written request for an oral hearing together with the request for review filed under § 30.24(a). (b) A request filed under paragraph (a) of this section must contain the following in addition to the information filed under § 30.24(b): (1) An explanation of reason(s) why the debtor believes the Secretary cannot resolve the issues identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii) through a review of the documentary evidence. (2) An identification of: (i) The individuals that the debtor wishes to have testify at the oral hearing; (ii) The specific issues identified in the notice regarding which each individual is prepared to testify; and (iii) The reasons why each individual's testimony is necessary to resolve the issue. (c) The Secretary grants a debtor's request for an oral hearing regarding the issues identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii) only if: (1)(i) A statute authorizes or requires the Secretary to consider waiver of the indebtedness involved; (ii) The debtor files a request for waiver of the indebtedness with the request for review filed under paragraph (a)(1) of this section; and (iii) The question of waiver of the indebtedness turns on an issue of credibility or veracity; or (2) The Secretary determines that the issues identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii) cannot be resolved by review of only the documentary evidence. (d) Notwithstanding paragraph (b) of this section, the Secretary may deny oral hearings for a class of similar debts if: (1) The issues identified in the notice under § 30.22(b)(3)(ii) or 30.33(b)(3)(ii) for which an oral hearing was requested, or the issue of waiver, rarely involve issues of credibility or veracity; and (2) The Secretary determines that review of the documentary evidence is ordinarily an adequate means to correct mistakes. (e) The Secretary may decline t… | |||||
| 34:34:1.1.1.1.12.3.4.7 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.26 What special rules apply to an oral hearing? | ED | (a) The oral hearing under § 30.25 is not a formal evidentiary hearing subject to 5 U.S.C. 554, unless required by law. (b) If the Secretary grants an oral hearing, the Secretary notifies the debtor in writing of: (1) The time and place for the hearing; (2) The debtor's right to representation; and (3) The debtor's right to present and cross examine witnesses. (c) If the Secretary grants an oral hearing, the Secretary designates an official to: (1) Govern the conduct of the hearing; (2) Take all necessary action to avoid unreasonable delay in the proceedings; (3) Review the evidence presented at the hearing, the documents submitted by the debtor, and other relevant evidence; and (4) After considering the evidence, notify the debtor in writing of the official's decision regarding the issues identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii) and, if appropriate, the question of waiver of the debt. (d) The official designated under paragraph (c) of this section may decline to hear any witnesses or testimony not identified by the debtor in accordance with § 30.25(b)(2). (e) The decision of the designated official under paragraph (c) of this section constitutes the final decision of the Secretary. | ||||||
| 34:34:1.1.1.1.12.3.4.8 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.27 When does the Secretary enter into a repayment agreement rather than offset? | ED | [51 FR 24099, July 1, 1986, as amended at 51 FR 35647, Oct. 7, 1986] | (a) If a debtor wants an opportunity to enter into a written agreement to repay a debt on terms acceptable to the Secretary, the debtor must: (1) File a request to enter into such agreement within 20 days after the date of the notice provided under § 30.22; and (2) File the request at the address specified in the notice. (b) A request filed under paragraph (a) of this section must contain all information provided to the debtor in the notice under § 30.22 or § 30.33(b) that identifies the debtor and the debt, including the debtor's Social Security number and the program under which the debt arose, together with any corrections of that identifying information. (c) If the Secretary receives a request filed in accordance with this section, the Secretary may enter into a written agreement requiring repayment in accordance with 4 CFR 102.11, instead of offsetting the debt. (d) In deciding whether to enter into the agreement, the Secretary may consider: (1) The Government's interest in collecting the debt; and (2) Fairness to the debtor. (e)(1) A debtor that enters into a repayment agreement with the Secretary under this section waives any right to further review by the Secretary of the issues relating to the original debt identified in the notice under § 30.22(b)(3)(ii) or § 30.33(b)(3)(ii). (2) If a debtor breaches a repayment agreement, the Secretary may offset, or, under § 30.30, refer to another agency for offset: (i) The amount owing under the agreement; or (ii) The entire original debt, to the extent not repaid. | |||||
| 34:34:1.1.1.1.12.3.4.9 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.28 When may the Secretary offset before completing the procedures under §§ 30.22-30.27? | ED | (a) The Secretary may offset before completing the procedures otherwise required by §§ 30.22-30.27 if: (1) Failure to offset would substantially prejudice the Government's ability to collect the debt; and (2) The amount of time remaining before the payment by the United States which is subject to offset does not reasonably permit completion of the procedures under §§ 30.22-30.27. (b) If the Secretary offsets under paragraph (a) of this section, the Secretary: (1) Promptly completes the procedures under §§ 30.22-30.27 after initiating the offset; and (2) Refunds any amounts recovered under the offset that are later found not to be owed to the United States. | ||||||
| 34:34:1.1.1.1.12.3.5.13 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.33 What procedures does the Secretary follow for IRS tax refund offsets? | ED | (a) If a named person owes a debt under a program or activity of the Department, the Secretary may refer the debt for offset to the Secretary of the Treasury after complying with the procedures in §§ 30.20-30.28, as modified by this section. (b) Notwithstanding § 30.22(b), the notice sent to a debtor under § 30.22 informs the debtor that: (1) The debt is past due; (2) The Secretary intends to refer the debt for offset to the Secretary of Treasury; (3) The debtor has an opportunity to: (i) Inspect and copy Department records regarding the existence, amount, enforceability, or past-due status of the debt; (ii) Obtain a review within the Department of the existence, amount, enforceability, or past-due status of the debt; (iii) Enter into a written agreement with the Secretary to repay the debt; and (4) The debtor must take an action set forth under paragraph (b)(3) by a date specified in the notice. (c) Notwithstanding § 30.23(a), if a debtor wants to inspect and copy Department records regarding the existence, amount, enforceability, or past-due status of the debt, the debtor must: (1) File a written request to inspect and copy the records within 20 days after the date of the notice provided under § 30.22; and (2) File the request at the address specified in that notice. (d) Notwithstanding the time frame under § 30.24(a), if a debtor wants a review under that paragraph, the debtor must file a request for review at the address specified in the notice by the later of: (1) Sixty-five days after the date of the notice provided under § 30.22; (2) If the debtor has requested an opportunity to inspect and copy records within the time period specified in paragraph (c) of this section, 15 days after the date on which the Secretary makes available to the debtor the relevant, requested records; or (3) If the debtor has requested a review within the appropriate time frame under paragraph (d) (1) or (2) of this section and the Secretary has provided an initial review by a guarantee agency, seven days after the d… | ||||||
| 34:34:1.1.1.1.12.3.6.14 | 34 | Education | 30 | PART 30—DEBT COLLECTION | C | Subpart C—What Provisions Apply to Administrative Offset? | § 30.35 What procedures does the Secretary follow to report debts to consumer reporting agencies? | ED | (a)(1) The Secretary reports information regarding debts arising under a program or activity of the Department and held by the Department to consumer reporting agencies, in accordance with the procedures described in this section. (2) The term consumer reporting agency, as used in this section, has the same meaning as provided in 31 U.S.C. 3701(a)(3). (b) Before reporting information on a debt to a consumer reporting agency, the Secretary follows the procedures set forth in § 30.33. | ||||||
| 34:34:1.1.1.1.12.5.7.1 | 34 | Education | 30 | PART 30—DEBT COLLECTION | E | Subpart E—What Costs and Penalties Does the Secretary Impose on Delinquent Debtors? | § 30.60 What costs does the Secretary impose on delinquent debtors? | ED | (a) The Secretary may charge a debtor for the costs associated with the collection of a particular debt. These costs include, but are not limited to— (1) Salaries of employees performing Federal loan servicing and debt collection activities; (2) Telephone and mailing costs; (3) Costs for reporting debts to credit bureaus; (4) Costs for purchase of credit bureau reports; (5) Costs associated with computer operations and other costs associated with the maintenance of records; (6) Bank charges; (7) Collection agency costs; (8) Court costs and attorney fees; and (9) Costs charged by other Governmental agencies. (b) Notwithstanding any provision of State law, if the Secretary uses a collection agency to collect a debt on a contingent fee basis, the Secretary charges the debtor, and collects through the agency, an amount sufficient to recover— (1) The entire amount of the debt; and (2) The amount that the Secretary is required to pay the agency for its collection services. (c)(1) The amount recovered under paragraph (b) of this section is the entire amount of the debt, multiplied by the following fraction: (2) In paragraph (c)(1) of this section, cr equals the commission rate the Department pays to the collection agency. (d) If the Secretary uses more than one collection agency to collect similar debts, the commission rate (cr) described in paragraph (c)(2) of this section is calculated as a weighted average of the commission rates charged by all collection agencies collecting similar debts, computed for each fiscal year based on the formula where— (1) Xi equals the dollar amount of similar debts placed by the Department with an individual collection agency as of the end of the preceding fiscal year; (2) Yi equals the commission rate the Department pays to that collection agency for the collection of the similar debts; (3) Z equals the dollar amount of similar debts placed by the Department with all collection agencies as of the end of the preceding fiscal year; and (4) N equals the number of collec… | ||||||
| 34:34:1.1.1.1.12.5.7.2 | 34 | Education | 30 | PART 30—DEBT COLLECTION | E | Subpart E—What Costs and Penalties Does the Secretary Impose on Delinquent Debtors? | § 30.61 What penalties does the Secretary impose on delinquent debtors? | ED | (a) If a debtor does not make a payment on a debt, or portion of a debt, within 90 days after the date specified in the first demand for payment sent to the debtor, the Secretary imposes a penalty on the debtor. (b)(1) The amount of the penalty imposed under paragraph (a) of this section is 6 percent per year of the amount of the delinquent debt. (2) The penalty imposed under this section runs from the date specified in the first demand for payment to the date the debt (including the penalty) is paid. (c) If a debtor has agreed under a repayment or settlement agreement with the Secretary to pay a penalty for failure to pay a debt when due, or has such an agreement under a grant or contract under which the debt arose, the Secretary collects the penalty in accordance with the agreement, grant, or contract. (d) The Secretary does not impose a penalty against State or local governments under paragraphs (a) and (b) of this section. | ||||||
| 34:34:1.1.1.1.12.5.7.3 | 34 | Education | 30 | PART 30—DEBT COLLECTION | E | Subpart E—What Costs and Penalties Does the Secretary Impose on Delinquent Debtors? | § 30.62 When does the Secretary forego interest, administrative costs, or penalties? | ED | (a) For a debt of any amount based on a loan, the Secretary may refrain from collecting interest or charging administrative costs or penalties to the extent that compromise of these amounts is appropriate under the standards for compromise of a debt contained in 4 CFR part 103. (b) For a debt not based on a loan the Secretary may waive, or partially waive, the charging of interest, or the collection of administrative costs or penalties, if— (1) Compromise of these amounts is appropriate under the standards for compromise of a debt contained in 4 CFR part 103; or (2) The Secretary determines that the charging of interest or the collection of administrative costs or penalties is— (i) Against equity and good conscience; or (ii) Not in the best interests of the United States. (c) The Secretary may exercise waiver under paragraph (b)(1) of this section without regard to the amount of the debt. (d) The Secretary may exercise waiver under paragraph (b)(2) of this section if— (1) The Secretary has accepted an installment plan under 4 CFR 102.11; (2) There is no indication of fault or lack of good faith on the part of the debtor; and (3) The amount of interest, administrative costs, and penalties is such a large portion of the installments that the debt may never be repaid if that amount is collected. (e)(1) The Secretary does not charge interest on any portion of a debt, other than a loan, owed by a person subject to 31 U.S.C. 3717 if the debt is paid within 30 days after the date of the first demand for payment. (2) The Secretary may extend the period under paragraph (e)(1) of this section if the Secretary determines that the extension is appropriate. | ||||||
| 34:34:1.1.1.1.12.6.7.1 | 34 | Education | 30 | PART 30—DEBT COLLECTION | F | Subpart F—What Requirements Apply to the Compromise of a Debt or the Suspension or Termination of Collection Action? | § 30.70 How does the Secretary exercise discretion to compromise a debt or to suspend or terminate collection of a debt? | ED | [81 FR 76070, Nov. 1, 2016] | (a)(1) The Secretary uses the standards in the FCCS, 31 CFR part 902, to determine whether compromise of a debt is appropriate if the debt arises under a program administered by the Department, unless compromise of the debt is subject to paragraph (b) of this section. (2) If the amount of the debt is more than $100,000, or such higher amount as the Department of Justice may prescribe, the Secretary refers a proposed compromise of the debt to the Department of Justice for approval, unless the compromise is subject to paragraph (b) of this section or the debt is one described in paragraph (e) of this section. (b) Under the provisions in 34 CFR 81.36, the Secretary may enter into certain compromises of debts arising because a recipient of a grant or cooperative agreement under an applicable Department program has spent some of these funds in a manner that is not allowable. For purposes of this section, neither a program authorized under the Higher Education Act of 1965, as amended (HEA), nor the Impact Aid Program is an applicable Department program. (c)(1) The Secretary uses the standards in the FCCS, 31 CFR part 903, to determine whether suspension or termination of collection action on a debt is appropriate. (2) Except as provided in paragraph (e), the Secretary— (i) Refers the debt to the Department of Justice to decide whether to suspend or terminate collection action if the amount of the debt outstanding at the time of the referral is more than $100,000 or such higher amount as the Department of Justice may prescribe; or (ii) May suspend or terminate collection action if the amount of the debt outstanding at the time of the Secretary's determination that suspension or termination is warranted is less than or equal to $100,000 or such higher amount as the Department of Justice may prescribe. (d) In determining the amount of a debt under paragraph (a), (b), or (c) of this section, the Secretary deducts any partial payments or recoveries already received, and excludes interest, penalties, and administrativ… | |||||
| 34:34:1.1.1.1.13.0.7.1 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.1 Scope. | ED | (a) General. The Secretary establishes the standards and procedures in this part that apply to the offset from disposable pay of a current or former Federal employee or from amounts payable from the Federal retirement account of a former Federal employee to recover a debt owed the United States under a program adminstered by the Secretary of Education. (b) Exclusions. This part does not apply to— (1) Offsets under 34 CFR part 32 to recover for overpayments of pay or allowances to an employee of the Department; (2) Offsets under 34 CFR part 30; or (3) Offsets under section 124 of Pub. L. 97-276 to collect debts owed to the United States on judgments. (c) Reports to consumer reporting agency. The Secretary may report a debt to a consumer reporting agency after notifying the employee, in accordance with 34 CFR 30.35, of the intention to report the debt, and after providing the employee an opportunity to inspect documents, receive a hearing, and enter into a repayment agreement under this part. | ||||||||
| 34:34:1.1.1.1.13.0.7.10 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.10 Request for repayment agreement. | ED | (a) The Secretary does not initiate an offset under this part if the employee agrees in writing to repay the debt under terms acceptable to the Secretary and makes the first payment due under the agreement on or before the latest of— (1) The seventh day after the date of the decision of the hearing official, if the employee timely requested a hearing under § 31.5 (a) and (d); (2) The sixty-fifth day after the date of the pre-offset notice under § 31.3 if the employee did not timely request either a hearing in accordance with § 31.5 (a) and (d) or an opportunity to inspect and copy documents related to the debt under § 31.4; or (3) The fifteenth day after the date on which the Secretary made available documents related to the debt, if the employee filed a timely request for documents under § 31.4. (b) In the agreement, the Secretary and the employee may agree to satisfaction of the debt from sources other than an offset under this part, or may modify the amount proposed to be offset in the pre-offset notice or estimated in the decision of the hearing official. (c) If the employee does not enter into a repayment agreement acceptable to the Secretary within the deadlines in this section, the Secretary may initiate an offset under this part. The Secretary continues to collect by offset until an employee enters in a satisfactory repayment agreement for the debt. The Secretary suspends an offset already commenced under circumstances described in § 31.5(a)(2). | ||||||||
| 34:34:1.1.1.1.13.0.7.11 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.11 Offset process. | ED | (a) The Secretary attempts to collect debts under this part within the shortest time authorized under— (1) The offset schedule proposed in the pre-offset notice, unless modified by agreement or by the decision of a hearing official; (2) A written repayment agreement with the employee; or (3) The offset schedule established in the decision of the hearing official. (b) In proposing an offset schedule under § 31.3 or establishing a repayment agreement under § 31.10, the Secretary also considers the expected period of Federal employment of the employee. (c) Unless the Secretary determines, in his discretion, to delay or suspend collection, the Secretary effects an offset under this part— (1) According to the terms agreed to by the employee pursuant to a timely request under § 31.10 to enter into a repayment agreement; or, (2) After the deadlines in § 31.10(b) for requesting a repayment agreement with the Secretary. (d) If the employee retires, resigns, or leaves Federal employment before the debt is satisfied, the Secretary collects the amount necessary to satisfy the debt by offset from subsequent payments of any kind, including a final salary payment or a lump sum annual leave payment, due the employee on the date of separation. If the debt cannot be satisfied by offset from any such final payment due the employee on the date of separation, the Secretary collects the debt from later payments of any kind due the employee in accordance with the provisions of 4 CFR 102.4. (e) The Secretary effects an offset under this part against payments owing to an employee of another Federal agency after completion of the requirements of this part, in accordance with the provisions of 5 CFR 550.1108. | ||||||||
| 34:34:1.1.1.1.13.0.7.2 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.2 Definitions. | ED | As used in this part: Agency means— (1) An Executive agency as defined in 5 U.S.C. 105, including the U.S. Postal Service and the U.S. Postal Rate Commission; (2) A military department as defined in 5 U.S.C. 102; (3) An agency or court in 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 Multidistrict Litigation; (4) An agency of the legislative branch, including the U.S. Senate and the U.S. House of Representatives; and (5) Any other independent establishment that is an entity of the Federal Government. Days refer to calendar days. Department means the Education Department. Disposable pay means the amount that remains from an employee's pay after required deductions for Federal, State, and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs; premiums for basic life insurance and health insurance benefits; and such other deductions that are required by law to be withheld. Employee means a current or former employee of an agency. In the case of an offset proposed to collect a debt owed by a deceased employee, the references in this part to the employee shall be read to refer to the payee of benefits from the Federal retirement account or other pay of the employee. Federal retirement account means an account of an employee under the Civil Service Retirement System or the Federal Employee Retirement System. Offset means a deduction from the pay of an employee, or a payment due from the Federal retirement account of an employee, to satisfy a debt. Pay means basic pay, special pay, incentive pay, retired pay, retainer pay, or, in the case of an individual not entitled to basic pay, other authorized pay, including severance pay or lump sum payments for accrued annual leave, and amounts payable from the Federal retirement account of an employee. Secretary means the Secretary of the Department of Education or an official or employee of the Department acting f… | ||||||||
| 34:34:1.1.1.1.13.0.7.3 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.3 Pre-offset notice. | ED | (a) At least 65 days before initiating an offset against the pay of an employee, the Secretary sends a written notice to the employee stating— (1) The nature and amount of the debt; (2) A demand for payment of the debt; (3) The manner in which the Secretary charges interest, administrative costs, and penalties on the debt; (4) The Secretary's intention to collect the debt by offset against— (i) 15 percent of the employee's current disposable pay; and (ii) If the debt cannot be satisfied by offset against current disposable pay, a specified amount of severance pay, a lump sum annual leave payment, a final salary check, or payments from the Federal retirement account of the employee; (5) The amount, frequency, approximate beginning date and duration of the proposed offset; (6) The employee's opportunity to— (i) Inspect and copy Department records pertaining to the debt; (ii) Obtain a pre-offset hearing before a hearing official who is not under the control or supervision of the Secretary regarding the existence or amount of the debt, or the proposed offset schedule; and (iii) Enter into a written agreement with the Secretary to repay the debt; (7) The date by which the employee must request an opportunity set forth under paragraph (a)(6) of this section; (8) The grounds for objecting to collection of the debt by offset; (9) The applicable hearing procedures and requirements; (10) That the Secretary grants any request for access to records, for a hearing, or for a satisfactory repayment agreement made by an employee; (11) That the Secretary does not delay the start of the proposed offset, or suspend an offset already commenced, unless— (i) An employee makes the request for access to records or for a hearing, or enters into a repayment agreement that is acceptable to the Secretary, before the deadlines described in this part; or (ii) An employee requests a hearing after the deadlines established in § 31.5(a), but submits evidence satisfactory to the Secretary that the request was not made in a timel… | ||||||||
| 34:34:1.1.1.1.13.0.7.4 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.4 Request to inspect and copy documents relating to a debt. | ED | (a) The Secretary makes available for inspection and copying before offset under this part those Department documents that relate to the debt, if the employee— (1) Files a written request to inspect and copy the documents within 20 days of the date of the pre-offset notice under § 31.3, and (2) Files the request at the address specified in that notice. (b) A request filed under paragraph (a)(1) of this section must contain— (1) All information provided to the employee in the pre-offset notice under § 31.3 that identifies the employee and the debt, including the employee's Social Security number and the program under which the debt arose, together with any corrections of that identifying information; and (2) A reasonably specific identification of the documents that the employee wishes to have available for inspection and copying. (c) The Secretary makes available documents for inspection and copying upon request by the employee. However, the Secretary may initiate an offset before making the requested documents available if the employee fails to request inspection and copying in accordance with this section. | ||||||||
| 34:34:1.1.1.1.13.0.7.5 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.5 Request for hearing on the debt or the proposed offset. | ED | (a) Deadlines. (1) The Secretary provides a hearing before offset on the existence, amount, or enforceability of the debt described in the pre-offset notice provided under § 31.3, or on the amount or frequency of the offsets as proposed in that notice, if the employee— (i) Files a request for the hearing within the later of— (A) 65 days after the date of the pre-offset notice provided under § 31.3; or (B) 15 days after the date on which the Secretary makes available to the employee the relevant, requested documents if the employee had requested an opportunity to inspect and copy documents within 20 days of the date of the pre-offset notice provided under § 31.3; and (ii) Files a request at the address specified in that notice. (2) The Secretary provides a hearing upon request by the employee. However, if the employee does not submit, within the deadlines in paragraph (a)(1) of this section, a request that meets the requirements of paragraphs (b) and (c) of this section, the Secretary does not delay the start of an offset, or suspend an offset already commenced, unless the employee submits evidence satisfactory to the Secretary that the request was not made in a timely manner because the employee did not have notice of the proposed offset, or was otherwise prevented from making the request by factors beyond his or her control, until after the deadlines had passed. (b) Contents of request for a hearing. A request for a hearing must contain— (1) All information provided to the employee in the pre-offset notice under § 31.3 that identifies the employee and the particular debt, including the employee's Social Security number and the program under which the debt arose, together with any corrections needed with regard to that identifying information; (2) An explanation of the reasons why the employee believes that— (i) The debt as stated in the pre-offset notice is not owing or is not enforceable by offset; or (ii) The amount of the proposed offset described in the pre-offset notice will cause extreme fina… | ||||||||
| 34:34:1.1.1.1.13.0.7.6 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.6 Location and timing of oral hearing. | ED | (a) If the Secretary grants a request for an oral hearing, the Secretary selects the time, date, and location of the hearing. The Secretary selects, to the extent feasible, the location that is most convenient for the employee. (b) For a current military employee, the Secretary selects the time, date, and location of the hearing after consultation with the Secretary of Defense. (c) For a current Coast Guard employee, the Secretary selects the time, date, and location of the hearing after consultation with the Secretary of Transportation. (d) For an employee not described in paragraph (a) or (b) of this section, the hearing will be held in Washington, DC, or in one of the following cities: Boston, Philadelphia, New York, Atlanta, Chicago, Dallas, Kansas City, Denver, San Francisco, or Seattle. | ||||||||
| 34:34:1.1.1.1.13.0.7.7 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.7 Hearing procedures. | ED | [54 FR 31821, Aug. 19, 1989, as amended at 86 FR 40334, July 28, 2021] | (a) Independence of hearing official. A hearing provided under this part is conducted by a hearing official who is not under the supervision or control of the Secretary, except that this prohibition does not apply to the Department's administrative law judges. (b) Lack of subpoena authority or formal discovery. (1) Neither the hearing official nor the Secretary has authority to issue subpoenas to compel the production of documents or to compel the attendance of witnesses at an oral hearing under this part. The Secretary will attempt to make available during an oral hearing the testimony of a current official of the Department if— (i) The employee had identified the official in the request for a hearing under § 31.5(b) and demonstrated that the testimony of the official is necessary to resolve adequately an issue of fact raised by the employee in the request for a hearing; and (ii) The Secretary determines that the responsibilities of the official permit his or her attendance at the hearing. (2) If the Secretary determines that the testimony of a Department official is necessary, but that the official cannot attend an oral hearing to testify, the Secretary attempts to make the official available for testimony at the hearing by means of a telephone conference call. (3) No discovery is available in a proceeding under this part except as provided in § 31.4. (c) Hearing on written submissions. If a hearing is conducted on the written submissions, the hearing official reviews documents and responses submitted by the Secretary and the employee under § 31.5. (d) Conduct of oral hearing. (1) The hearing official conducts an oral hearing as an informal proceeding. The official— (i) Administers oaths to witnesses; (ii) Regulates the course of the hearing; (iii) Considers the introduction of evidence without regard to the rules of evidence applicable to judicial proceedings; and (iv) May exclude evidence that is redundant, or that is not relevant to those issues raised by the employee in the request for he… | |||||||
| 34:34:1.1.1.1.13.0.7.8 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.8 Rules of decision. | ED | (a) Enforceability of debt by offset. In deciding whether the Secretary has established that the debt described in the pre-offset under § 31.3 is owed by the employee, or whether the employee has established that the debt is not enforceable by offset, the hearing official shall apply the principles in this paragraph. (1) The statutes and Department regulations authorizing and implementing the program under which the debt arose must be applied in accordance with official written interpretations by the Department. (2) The principles of res judicata and collateral estoppel apply to resolution of disputed facts in those instances in which the debt or material facts in dispute have been the subject of prior judicial decision. (3) The act or omission of an institution of higher education at which the employee was enrolled does not constitute a defense to repayment of an obligation with regard to a grant or loan under a program authorized under Title IV of the Higher Education Act or similar authority, except to the extent that— (i) The act or omission constitutes a defense to the debt under applicable Federal or State law; (ii) The institution owed the employee a refund under its refund policy and failed to pay that refund to the employee or to a lender holding a loan made to the employee; or (iii) The institution ceased teaching activity while the employee was in attendance and during the academic period for which the grant or loan was made, and failed to refund to the employee or holder of a loan to the employee a proportionate amount of the grant or loan funds used to pay tuition and other institutional charges for that academic period. (4)(i) A debt otherwise established as owed by the employee is enforceable by offset under this part if the Secretary sends the pre-offset notice for the debt within the ten year period following the later of— (A) The date on which the Secretary acquired the debt by assignment or referral, or (B) The date of a subsequent partial payment reaffirming the debt. (ii) Periods … | ||||||||
| 34:34:1.1.1.1.13.0.7.9 | 34 | Education | 31 | PART 31—SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF EDUCATION | § 31.9 Decision of the hearing official. | ED | (a) The hearing official issues a written opinion within sixty days of the date on which the employee filed a request for a hearing under § 31.5, unless a delay in the proceedings has been granted at the request of the employee. In the opinion, the hearing official states his or her decision and the findings of fact and conclusions of law on which the decision is based. (b) If the hearing official finds that a portion of the debt described in the pre-offset notice under § 31.3 is not enforceable by offset, the official shall state in the opinion that portion which is enforceable by offset. (c) If the hearing official finds that the amount of the offset proposed in the pre-offset notice will cause an extreme financial hardship for the employee, the hearing official shall establish an offset schedule that will result in the repayment of the debt in the shortest period of time without producing an extreme financial hardship for the employee. | ||||||||
| 34:34:1.1.1.1.14.0.7.1 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.1 Scope. | ED | (a) The Secretary establishes the standards and procedures in this part that apply to the deductions through offset from disposable pay of a current or former employee of the Department of Education to recover overpayments of pay or allowances. (b) This part does not apply to— (1) Recovery through offset of an indebtedness to the United States by an employee of the Department under a program administered by the Secretary of Education covered under 34 CFR part 31; (2) The offset of an indebtedness to the United States by a Federal employee to satisfy a judgment obtained by the United States against that employee in a court of the United States; (3) The offset of any payment to an employee of the Department of Education which is expressly allowed under statutes other than 5 U.S.C. 5514, except as to offsets of severance pay and/or lump sum annual leave payments as authorized under 31 U.S.C. 3716; (4) Offsets under 34 CFR part 30; or (5) An employee election of coverage or of a change of coverage under a Federal benefits program which requires periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less. | ||||||||
| 34:34:1.1.1.1.14.0.7.10 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.10 Deductions process. | ED | (a) Debts must be collected in one lump sum where possible. If the employee does not agree to a lump sum that exceeds 15 percent of disposable pay, the debt must be collected in installment deductions at officially established pay intervals in the amount established under: (1) A voluntary repayment agreement; (2) An involuntary repayment schedule where no hearing is requested; or (3) The schedule established under the written hearing decision. (b) Installment deductions must be made over a period not greater than the anticipated period of employment, except as provided under paragraph (d) of this section. If possible, the installment payment must be sufficient in size and frequency to liquidate the debt in, at most, three years. Installment payments of less than $25 may be accepted only in the most unusual circumstances. (c) Deductions must begin: (1) After the employee has entered a voluntary repayment schedule; (2) If a waiver is requested under § 32.4(b), after the employee has been denied a waiver by the Secretary; or (3) If a hearing is requested under § 32.5, after a written decision. (d) If the employee retires or resigns or his or her employment ends before collection of the debt is completed, the amount necessary to liquidate the debt must be offset from subsequent payments of any nature (for example, final salary payment and/or lump sum annual leave payment) due the employee on the date of separation. If the debt cannot be liquidated by offset from any such final payment due the employee on the date of separation, the debt must be liquidated by administrative offset pursuant to 31 U.S.C. 3716 from later payments of any kind due the employee, where appropriate. After the Secretary has complied with the procedures in this part, the Secretary may refer the debt to a paying agency for collection by offset under 5 CFR 550.1108. (e) Interest, penalties and administrative costs on debts collected under this part must be assessed, in accordance with the provisions of 4 CFR 102.13. (f) An employee's p… | ||||||||
| 34:34:1.1.1.1.14.0.7.2 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.2 Definitions. | ED | The following definitions apply to this part: Department means the Department of Education. Disposable pay means the amount that remains from an employee's pay after required deductions for Federal, State, and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs; premiums for health and basic life insurance benefits; and such other deductions that are required by law to be withheld. Employee means a current or former employee of the Department. Former employee means a former employee of the Department who is entitled to pay from the Department or another agency. Pay means basic pay, special pay, incentive pay, retired pay, retainer pay, or, in the case of an individual not entitled to basic pay, other authorized pay, including severance pay and/or lump sum payments for accrued annual leave. Paying agency means a Federal agency currently employing an individual and authorizing the payment of his or her current pay. Secretary means the Secretary of the Department of Education or an official or employee of the Department acting for the Secretary under a delegation of authority. | ||||||||
| 34:34:1.1.1.1.14.0.7.3 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.3 Pre-offset notice. | ED | At least 30 days before initiating a deduction from the disposable pay of an employee to recover an overpayment of pay or allowances, the Secretary sends a written notice to the employee stating— (a) The origin, nature and amount of the overpayment; (b) How interest is charged and administrative costs and penalties will be assessed, unless excused under 31 U.S.C. 3716; (c) A demand for repayment, providing for an opportunity for the employee to enter into a written repayment agreement with the Department; (d) Where a waiver of repayment is authorized by law, the employee's right to request a waiver; (e) The Department's intention to deduct 15 percent of the employee's disposable pay, or a specified amount if the disposable pay is severance pay and/or a lump sum annual leave payment, to recover the overpayment if a waiver is not granted by the Secretary and the employee fails to repay the overpayment or enter into a written repayment agreement; (f) The amount, frequency, approximate beginning date and duration of the intended deduction; (g) If Government records on which the determination of overpayment are not attached, how those records will be made available to the employee for inspection and copying; (h) The employee's right to request a pre-offset hearing concerning the existence or amount of the overpayment or an involuntary repayment schedule; (i) The applicable hearing procedures and requirements, including a statement that a timely petition for hearing will stay commencement of collection proceedings and that a final decision on the hearing will be issued not later than 60 days after the hearing petition is filed, unless a delay is requested and granted; (j) That any knowingly false or frivolous statements, representations or evidence may subject the employee to applicable disciplinary procedures, civil or criminal penalties; and (k) That where amounts paid or deducted are later waived or found not owed, unless otherwise provided by law, they will be promptly refunded to the employee. | ||||||||
| 34:34:1.1.1.1.14.0.7.4 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.4 Employee response. | ED | (a) Voluntary repayment agreement. Within 7 days of receipt of the written notice under § 32.3, the employee may submit a request to the Secretary to arrange for a voluntary repayment schedule. To arrange for a voluntary repayment schedule, the employee shall submit a financial statement and sign a written repayment agreement approved by the Secretary. An employee who arranges for a voluntary repayment schedule may nonetheless request a waiver of the overpayment under paragraph (b) of this section. (b) Waiver. An employee seeking a waiver of collection of the debt that is authorized by law must request the waiver in writing to the Secretary within 10 days of receipt of the written notice under § 32.3. The employee must state why he or she believes a waiver should be granted. (c) Involuntary repayment schedule. If the employee claims that the amount of the involuntary deduction will cause extreme financial hardship and should be reduced, he or she must submit a written explanation and a financial statement signed under oath or affirmation to the Secretary within 10 days of receipt of the written notice under § 32.3. An employee who fails to submit this financial information in a timely manner waives the right to object to the involuntary repayment schedule at a hearing under § 32.5. The Secretary notifies the employee, in writing, whether the Secretary will reduce the rate of the involuntary deduction. | ||||||||
| 34:34:1.1.1.1.14.0.7.5 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.5 Pre-offset hearing—general. | ED | [52 FR 24957, July 1, 1987, as amended at 86 FR 40335, July 28, 2021] | (a) An employee who wishes a review of the existence or amount of the overpayment or an involuntary repayment schedule may request a pre-offset hearing. The pre-offset hearing does not review: (1) The denial of a waiver of repayment under 5 U.S.C. 5584; (2) The involuntary repayment schedule or financial hardship caused by the amount of the involuntary deduction from the employee's disposable pay, unless the employee has submitted the financial statement and written explanation required under § 32.4(c); and (3) The determination under paragraph (b) of this section that the pre-offset hearing is on the written submissions. (b) Unless the Secretary determines that a matter reviewable under paragraph (a) of this section turns on an issue of credibility or veracity or cannot be resolved by a review of the documentary evidence, the pre-offset hearing is on the written submissions. (c) A pre-offset hearing is based on the written submissions for overpayments arising from: (1) A termination of a temporary promotion; (2) A cash award; (3) An erroneous salary rate; (4) Premature granting of a within-grade increase; (5) A lump sum payment for annual leave; (6) Unauthorized appointment to a position; (7) An error on time and attendance records; or (8) Other circumstances where the Secretary determines that an oral hearing is not required. (d) The hearing is conducted by a hearing official who is not under the supervision or control of the Secretary, except that this prohibition does not apply to the Department's administrative law judges. (e) Formal discovery between the parties is not provided. | |||||||
| 34:34:1.1.1.1.14.0.7.6 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.6 Request for a pre-offset hearing. | ED | (a) Except for an employee who has requested a waiver of collection of the debt under § 32.4(b), an employee who wishes a pre-offset hearing must request the hearing within 15 days of receipt of the written notice given under § 32.3. The Secretary waives the 15-day requirement if the employee shows that the delay was because of circumstances beyond his or her control or because of failure to receive notice and lack of knowledge of the time limit. (b) An employee who has requested a waiver under § 32.4(b) may request a hearing within 10 days of receipt of a determination by the Secretary denying a waiver. (c) The request for a hearing must: (1) Be in writing; (2) State why the employee: (i) Contests the existence or amount of the overpayment; or (ii) Claims that the involuntary repayment schedule will cause extreme financial hardship; (3) Include all documents on which the employee is relying, other than those provided by the Secretary under § 32.3; any document which is a statement of an individual must be in the form of an affidavit; and (4) Be submitted to the designated hearing official with a copy to the Secretary. (d) If the employee timely requests a pre-offset hearing or the timelines are waived under paragraph (a) of this section, the Secretary: (1) Notifies the employee whether the employee may elect an oral hearing; and (2) Provides the hearing official with a copy of all records on which the determination of the overpayment and any involuntary repayment schedule are based. (e) An employee who has been given the opportunity to elect an oral hearing and who does elect an oral hearing must notify the hearing official and the Secretary of his or her election in writing within 7 days of receipt of the notice under paragraph (d)(1) of this section and must identify all proposed witnesses and all facts and evidence about which they will testify. (f) Where an employee requests an oral hearing, the hearing official notifies the Secretary and the employee of the date, time, and location of the heari… | ||||||||
| 34:34:1.1.1.1.14.0.7.7 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.7 Pre-offset oral hearing. | ED | (a) Oral hearings are informal in nature. The Secretary and the employee, through their representatives, and by reference to the documentation submitted, explain their case. The employee may testify on his or her own behalf, subject to cross examination. Other witnesses may be called to testify only where the hearing official determines that their testimony is relevant and not redundant. (b) The hearing official shall: (1) Conduct a fair and impartial hearing; and (2) Preside over the course of the hearing, maintain decorum, and avoid delay in the disposition of the hearing. (c) The employee may represent himself or herself or may be represented by another person at the hearing. The employee may not be represented by a person whose representation creates an actual or apparent conflict of interest. (d) Oral hearings are open to the public. However, the hearing official may close all or any portion of the hearing where to do so is in the best interests of the employee or the public. (e) Oral hearings may be conducted by conference call— (1) If the employee is located in a city outside the Washington, DC Metropolitan area; (2) At the request of the employee; or (3) At the discretion of the hearing official. | ||||||||
| 34:34:1.1.1.1.14.0.7.8 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.8 Pre-offset hearing on the written submissions. | ED | If a hearing is to be held on the written submissions, the hearing official reviews the records and responses submitted by the Secretary and the employee under § 32.6. | ||||||||
| 34:34:1.1.1.1.14.0.7.9 | 34 | Education | 32 | PART 32—SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES FROM DEPARTMENT OF EDUCATION EMPLOYEES | § 32.9 Written decision. | ED | (a) The hearing official issues a written decision stating the facts supporting the nature and origin of the debt and the hearing official's analysis, findings and conclusions as to the amount of the debt and the repayment schedule within 60 days of filing of the employee's request for a pre-offset hearing, unless the employee requests, and the hearing official grants, a delay in the proceedings. (b) The hearing official decides whether the Secretary's determination of the existence and the amount of the overpayment or the extreme financial hardship caused by the involuntary repayment schedule is clearly erroneous. A determination is clearly erroneous if although there is evidence to support the determination, the hearing official, considering the record as a whole, is left with a definite and firm conviction that a mistake was made. (c) In making the decision, the hearing official is governed by applicable Federal statutes, rules and regulations. (d) The hearing official decides the issue of extreme financial hardship caused by the involuntary repayment schedule only where the employee has submitted the financial statement and written explanation required under § 32.4(c). Where the hearing official determines that the involuntary repayment schedule creates extreme financial hardship, he or she must establish a schedule that alleviates the financial hardship but may not reduce the involuntary repayment schedule to a deduction of zero percent. | ||||||||
| 34:34:1.1.1.1.15.0.7.1 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.1 Basis and purpose. | ED | (a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Pub. L. No. 99-509, 6101 through 6104, 100 Stat. 16674 (October 21, 1986), to be codified at 31 U.S.C. 3801 through 3812. This law (31 U.S.C. 3809) requires each Federal department head to promulgate regulations necessary to implement the provisions of the statute. (b) Purpose. This part: (1) Establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to the Department or to its agents; and (2) Specifies the hearing and appeal rights of persons subject to allegations of liability for those penalties and assessments. | ||||||||
| 34:34:1.1.1.1.15.0.7.10 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.10 Default upon failure to file an answer. | ED | (a) If the defendant does not file an answer within the time prescribed in § 33.9(a), the reviewing official may refer the complaint to the ALJ. (b) Upon the referral of the complaint, the ALJ shall promptly serve on defendant in the manner prescribed in § 33.8, a notice that an initial decision will be issued under this section. (c) The ALJ shall assume the facts alleged in the complaint to be true and, if those facts establish liability under § 33.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute. (d) Except as otherwise provided in this section, by failing to file a timely answer the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section, and the initial decision becomes final and binding upon the parties 30 days after it is issued. (e) If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial decision must be stayed pending the ALJ's decision on the motion. (f) If, on such a motion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely answer, the ALJ shall withdraw the initial decision under paragraph (c) of this section, if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint. (g) A decision of the ALJ denying a defendant's motion under paragraph (e) of this section is not subject to reconsideration under § 33.38. (h) The defendant may appeal to the Department head the decision denying a motion to reopen by filing a notice of appeal with the Department head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal stays the initial decision until the Department head decides the issue. (i) If the defendant files a timely notice of appeal with the Department head, the ALJ shall forward… | ||||||||
| 34:34:1.1.1.1.15.0.7.11 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.11 Referral of complaint and answer to the ALJ. | ED | Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ. | ||||||||
| 34:34:1.1.1.1.15.0.7.12 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.12 Notice of hearing. | ED | (a) When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by § 33.8. At the same time, the ALJ shall send a copy of the notice to the representative for the Government. (b) The notice must include: (1) The tentative time and place, and the nature of the hearing; (2) The legal authority and jurisdiction under which the hearing is to be held; (3) The matters of fact and law to be asserted; (4) A description of the procedures for the conduct of the hearing; (5) The name, address, and telephone number of the representative of the Government and of the defendant, if any; and (6) Such other matters as the ALJ deems appropriate. | ||||||||
| 34:34:1.1.1.1.15.0.7.13 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.13 Parties to the hearing. | ED | (a) The parties to the hearing are the defendant and the Department. (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings to the extent authorized by the provisions of that Act. | ||||||||
| 34:34:1.1.1.1.15.0.7.14 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.14 Separation of functions. | ED | (a) The investigating official, the reviewing official, and any employee or agent of the Department who takes part in investigating, preparing, or presenting a particular case may not, in that case or a factually related case: (1) Participate in the hearing as the ALJ; (2) Participate or advise in the initial decision or the review of the initial decision by the Department head, except as a witness or a representative in public proceedings; or (3) Make the collection of penalties and assessments under 31 U.S.C. 3806. (b) The ALJ may not be responsible to, or subject to the supervision or direction of, the investigating official or the reviewing official. (c) Except as provided in paragraph (a) of this section, the representative for the Government may be employed anywhere in the Department, including in the offices of either the investigating official or the reviewing official. | ||||||||
| 34:34:1.1.1.1.15.0.7.15 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.15 Ex parte contacts. | ED | No party or person (except employees of the ALJ's office) may communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures. | ||||||||
| 34:34:1.1.1.1.15.0.7.16 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.16 Disqualification of reviewing official or ALJ. | ED | (a) A reviewing official or ALJ in a particular case may disqualify himself or herself at any time. (b) A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. That motion must be accompanied by an affidavit alleging personal bias or other reason for disqualification. (c) The motion and affidavit must be filed promptly upon the party's discovery of reasons requiring disqualification, or the objections are deemed waived. (d) The affidavit must state specific facts that support the party's belief that personal bias or other reason for disqualification exists and the time and circumstances of the party's discovery of those facts. It must be accompanied by a certificate of the representative of record that it is made in good faith. (e) Upon the filing of the motion and affidavit, the ALJ shall not proceed further in the case until he or she resolves the matter of disqualification in accordance with paragraph (f) of this section. (f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice. (2) If the ALJ disqualifies himself or herself, the case must be reassigned promptly to another ALJ. (3) If the ALJ denies a motion to disqualify, the Department head may determine the matter only as part of his or her review of the initial decision upon appeal, if any. | ||||||||
| 34:34:1.1.1.1.15.0.7.17 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.17 Rights of parties. | ED | Except as otherwise limited by this part, all parties may: (a) Be accompanied, represented, and advised by a representative (as defined in § 33.2); (b) Participate in any conference held by the ALJ: (c) Conduct discovery under § 33.21; (d) Agree to stipulations of fact or law, which must be made part of the record; (e) Present evidence relevant to the issues at the hearing; (f) Present and cross-examine witnesses; (g) Present oral arguments at the hearing as permitted by the ALJ; and (h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing. | ||||||||
| 34:34:1.1.1.1.15.0.7.18 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.18 Authority of the ALJ. | ED | (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made. (b) The ALJ has the authority to: (1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties; (2) Disqualify a non-attorney representative (designated as described in the § 33.2 definitions of “representative”) if the ALJ determines that the representative is incapable of rendering reasonably effective assistance; (3) Continue or recess the hearing in whole or in part for a reasonable period of time; (4) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding; (5) Administer oaths and affirmations; (6) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings; (7) Rule on motions and other procedural matters; (8) Regulate the scope and timing of discovery; (9) Regulate the course of the hearing and the conduct of representatives and parties; (10) Examine witnesses; (11) Receive, rule on, exclude, or limit evidence; (12) Upon motion of a party, take official notice of facts; (13) Upon motion of a party, decide cases, in whole or in part, by summary judgment if there is no disputed issue of material fact; (14) Conduct any conference, argument, or hearing on motions in person or by telephone; and (15) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part. (c) The ALJ does not have the authority to find Federal statutes or regulations invalid. | ||||||||
| 34:34:1.1.1.1.15.0.7.19 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.19 Prehearing conferences. | ED | (a) The ALJ may schedule perhearing conferences as appropriate. (b) Upon the motion of any party, the ALJ shall schedule at least one perhearing conference at a reasonable time in advance of the hearing. (c) The ALJ may use prehearing conferences to discuss the following: (1) Simplification of the issues. (2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement. (3) Stipulations, admissions of fact or as to the contents and authenticity of documents. (4) Whether the parties can agree to submission of the case on a stipulated record. (5) Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument. (6) Limitation of the number of witnesses. (7) Scheduling dates for the exchange of witness lists and of proposed exhibits. (8) Discovery. (9) The time and place for the hearing. (10) Such other matters as may tend to expedite the fair and just disposition of the proceedings. (d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference. | ||||||||
| 34:34:1.1.1.1.15.0.7.2 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.2 Definitions. | ED | As used in this part: ALJ means an Administrative Law Judge in the Department appointed pursuant to 5 U.S.C. 3105 or detailed to the Department pursuant to 5 U.S.C. 3344. Benefits, as used in the definition of “statement,” means anything of value, including but no limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status, or loan guarantee. Claim means any request, demand, or submission: (a) Made to the Department for property, services, or money (including money representing grants, cooperative agreements, loans, insurance, or benefits); (b) Made to a recipient of property, services, or money from the Department or to a party to a contract or agreement with the Department: (1) For property or services if the United States: (i) Provided the property or services; (ii) Provided any portion of the funds for the purchase of the property or services; or (iii) Will reimburse the recipient or party for the purchase of the property or services; or (2) For the payment of money (including money representing grants, cooperative agreements, loans, insurance, or benefits) if the United States: (i) Provided any portion of the money requested or demanded; (ii) Will reimburse the recipient or party for any portion of the money paid on that request or demand; or (iii) Will guarantee or reinsure any portion of a loan made by the party; or (c) Made to the Department which has the effect of decreasing an obligation to pay or account for property, services, or money. Complaint means the administrative complaint served by the reviewing official on the defendant under § 33.7. Defendant means any person alleged in a complaint under § 33.7 to be liable for a civil penalty or assessment under § 33.3. Department means the United States Department of Education. Department head means the Secretary or Under Secretary of the United States Department of Education. Government means the United States Government. Individual means a natural person. Initial decision means the … | ||||||||
| 34:34:1.1.1.1.15.0.7.20 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.20 Disclosure of documents. | ED | (a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 33.4(b) are based, unless those documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of the documents. (b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed. (c) The notice sent to the Attorney General from the reviewing official as described in § 33.5 is not discoverable under any circumstances. (d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 33.9. | ||||||||
| 34:34:1.1.1.1.15.0.7.21 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.21 Discovery. | ED | (a) The following types of discovery are authorized: (1) Requests for production of documents for inspection and copying. (2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact. (3) Written interrogatories. (4) Depositions. (b) For the purpose of this section and §§ 33.22 and 33.23, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained in this part may be interpreted to require the creation of a document. (c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery. (d) Motions for discovery. (1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition. (2) Within ten days of service, a party may file an opposition to the motion or a motion for protective order, or both, as provided in § 33.24. (3) The ALJ may grant a motion for discovery only if he finds that the discovery sought: (i) Is necessary for the expeditious, fair, and reasonable determination of the issues; (ii) Is not unduly costly or burdensome; (iii) Will not unduly delay the proceeding; and (iv) Does not seek privileged information. (4) The burden of showing that discovery should be allowed is on the party seeking discovery. (5) The ALJ may grant discovery subject to a protective order under § 33.24. (e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena must specify the time and place at which the deposition will be held. (2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 33.8. (3) The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order wi… | ||||||||
| 34:34:1.1.1.1.15.0.7.22 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.22 Exchange of witness lists, statements and exhibits. | ED | (a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 33.33(b). At the time these documents are exchanged, any party that is permitted by the ALJ to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, shall provide each other party with a copy of the specific pages of the transcript it intends to introduce. (b) If a party objects, the ALJ shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided in paragraph (a) of this Section unless the ALJ finds good cause for the failure or that there is no prejudice to the objecting party. (c) Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section are deemed to be authentic for the purpose of admissibility at the hearing. | ||||||||
| 34:34:1.1.1.1.15.0.7.23 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.23 Subpoenas for attendance at hearing. | ED | (a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena. (b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing. (c) A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. The request must specify any documents to be produced and must designate the witnesses and describe their address and location with sufficient particularity to permit the witnesses to be found. (d) The subpoena must specify the time and place at which a witness is to appear and any documents the witness is to produce. (e) The party seeking the subpoena shall serve it in the manner prescribed in § 33.8. A subpoena on a party or upon an individual under the control of a party may be served by first class mail. (f) A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if is is less then ten days after service. | ||||||||
| 34:34:1.1.1.1.15.0.7.24 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.24 Protective order. | ED | (a) A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence. (b) In issuing a protective order, the ALJ may take any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had. (2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place. (3) That the discovery may be had only through a method of discovery other than that requested. (4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters. (5) That the discovery be conducted with no one present except persons designated by the ALJ. (6) That the contents of discovery or evidence be sealed. (7) That a deposition after being sealed be opened only by order of the ALJ. (8) That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way. (9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ. | ||||||||
| 34:34:1.1.1.1.15.0.7.25 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.25 Fees. | ED | The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage must accompany the subpoena when served, except that if a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena. | ||||||||
| 34:34:1.1.1.1.15.0.7.26 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.26 Form, filing and service of papers. | ED | (a) Form. (1) Documents filed with the ALJ must include an original and two copies. (2) Every pleading and paper filed in the proceeding must contain a caption setting for the title of the action, the case number assigned by the ALJ, and a designation of the paper ( e.g. , motion to quash subpoena). (3) Every pleading and paper must be signed by, and must contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative. (4) Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail. (b) Service. A party filing a document with the ALJ shall, at the time of filing, serve a copy of the document on every other party. Service upon any party of any document other than those required to be served as prescribed in § 33.8 shall be made by delivering a copy, or by placing a copy of the document in the United States mail, postage prepaid and addressed, to the party's last known address. If a party is represented by a representative, service must be made upon the representative in lieu of the actual party. (c) Proof of service. A certificate of the individual serving the document by personal delivery or by mail, setting forth the manner of service, is proof of service. | ||||||||
| 34:34:1.1.1.1.15.0.7.27 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.27 Computation of time. | ED | (a) In computing any period of time under this part or in an order issued under this part, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal Government, in which event it includes the next business day. (b) If the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal Government are excluded from the computation. (c) If a document has been served or issued by placing it in the mail, an additional five days is added to the time permitted for any response. | ||||||||
| 34:34:1.1.1.1.15.0.7.28 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.28 Motions. | ED | (a) Any application to the ALJ for an order or ruling must be by motion. Motions must state the relief sought, the authority relied upon, and the facts alleged, and must be filed with the ALJ and served on all other parties. (b) Except for motions made during a prehearing conference or at the hearing, all motions must be in writing. The ALJ may require that oral motions be reduced to writing. (c) Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to the motion. (d) The ALJ may not grant a written motion before the time for filing responses to the motion has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny the motion without awaiting a response. (e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing. | ||||||||
| 34:34:1.1.1.1.15.0.7.29 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.29 Sanctions. | ED | (a) The ALJ may sanction a person, including any party or representative for— (1) Failing to comply with an order, rule, or procedure governing the proceeding; (2) Failing to prosecute or defend an action; or (3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing. (b) Any sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section must reasonably relate to the severity and nature of the failure or misconduct. (c) If a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the ALJ may— (1) Draw an inference in favor of the requesting party with regard to the information sought; (2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted; (3) Prohibit the party failing to comply with the order from introducing evidence concerning, or otherwise relying upon testimony relating to, the information sought; and (4) Strike any part of the pleadings or other submissions of the party failing to comply with the request. (d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments. (e) The ALJ may refuse to consider any motion, request, response, brief, or other document that is not filed in a timely fashion. | ||||||||
| 34:34:1.1.1.1.15.0.7.3 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.3 Basis for civil penalties and assessments. | ED | (a) Claims. (1) Any person who makes a claim that the person knows or has reason to know: (i) Is false, fictitious, or fraudulent; (ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent; (iii) Includes or is supported by any written statement that: (A) Omits a material fact; (B) Is false, fictitious, or fraudulent as a result of such omission; and (C) Is a statement in which the person making such statement has a duty to include such material fact; or (iv) Is for payment for the provision of property or services which the person has not provided as claimed; shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each claim. (2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim. (3) A claim is considered made to the Department, a recipient, or party when that claim is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the Department, a recipient, or party. (4) Each claim for property, services, or money is subject to a civil penalty regardless of whether the property, services, or money is actually delivered or paid. (5) If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under paragraph (a)(1) of this section is also subject to an assessment of not more than twice the amount of that claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section. The assessment is in lieu of damages sustained by the Government because of that claim. (b) Statements. (1) Any person who makes a written statement that: (i) The person knows or has reason to know: (A) Asserts a material fact which is false, fictitious, or fraudulent; or (B) Is false, fictitious, or fraudu… | ||||||||
| 34:34:1.1.1.1.15.0.7.30 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.30 The hearing and burden of proof. | ED | (a) The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under § 33.3 and, if so, the appropriate amount of the civil penalty or assessment considering any aggravating or mitigating factors. (b) The Department shall prove a defendant's liability and any aggravating factors by a preponderance of the evidence. (c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence. (d) The hearing must be open to the public unless otherwise ordered by the ALJ for good cause shown. | ||||||||
| 34:34:1.1.1.1.15.0.7.31 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.31 Determining the amount of penalties and assessments. | ED | (a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the Department head, upon appeal, evaluate any circumstances that mitigate or aggravate the violation and articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating fraudulent conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty is imposed. (b) Although not exhaustive, the following factors are among those that may influence the ALJ and the Department head in determining the amount of penalties and assessments to impose with respect to the misconduct ( i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint: (1) The number of false, fictitious, or fraudulent claims or statements. (2) The time period over which such claims or statements were made. (3) The degree of the defendent's culpability with respect to the misconduct. (4) The amount of money or the value of the property, services, or benefit falsely claimed. (5) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation. (6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss. (7) The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs. (8) Whether the defendant has engaged in a pattern of the same or similar misconduct. (9) Whether the defendant attempted to conceal the misconduct. (10) The degree to which the defendant has involved others in the misconduct or in concealing it. (11) If the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempt… | ||||||||
| 34:34:1.1.1.1.15.0.7.32 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.32 Location of hearing. | ED | (a) The hearing may be held: (1) In any judicial district of the United States in which the defendant resides or transacts business; (2) In any judicial district of the United States in which the claim or statement in issue was made; or (3) In such other place as may be agreed upon by the defendant and the ALJ. (b) Each party must have the opportunity to present argument with respect to the location of the hearing. (c) The hearing must be held at the place and at the time ordered by the ALJ. | ||||||||
| 34:34:1.1.1.1.15.0.7.33 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.33 Witnesses. | ED | (a) Except as provided in paragraph (b) of this section, testimony at the hearing must be given orally by witnesses under oath or affirmation. (b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of the witness, in a manner that allows sufficient time for other parties to subpoena the witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts must be exchanged as provided in § 33.22(a). (c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) Make the interrogation and presentation effective for the ascertainment of the truth; (2) Avoid needless consumption of time; and (3) Protect witnesses from harassment or undue embarrassment. (d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts. (e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination must be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party. (f) Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of— (1) A party who is an individual; (2) In the case of a party that is not an individual, an officer or employee of the party appearing for the party pro se or designated by the party's representative; or (3) An individual whose presence is shown by a party to be essential to the presentation of its c… | ||||||||
| 34:34:1.1.1.1.15.0.7.34 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.34 Evidence. | ED | (a) The ALJ shall determine the admissibility of evidence. (b) Except as provided in this part, the ALJ is not bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence if appropriate, e.g., to exclude unreliable evidence. (c) The ALJ shall exclude irrelevant and immaterial evidence. (d) Although relevant, evidence may be excluded if its probative value is substantially outweighted by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence. (e) Although relevant, evidence may be excluded if it is privileged under Federal law. (f) Evidence concerning offers of compromise or settlement are inadmissible to the extend provided in Rule 408 of the Federal Rules of Evidence. (g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence. (h) All Documents and other evidence offered or taken for the record must be open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 33.24. | ||||||||
| 34:34:1.1.1.1.15.0.7.35 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.35 The record. | ED | (a) The hearing must be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication. (b) The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the Department head. (c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 33.24. | ||||||||
| 34:34:1.1.1.1.15.0.7.36 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.36 Post-hearing briefs. | ED | The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing these briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. The briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs. | ||||||||
| 34:34:1.1.1.1.15.0.7.37 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.37 Initial decision. | ED | (a) The ALJ shall issue an initial decision, based only on the record, that contains findings of fact, conclusions of law, and the amount of any penalties and assessments imposed. (b) The findings of fact must include a finding on each of the following issues: (1) Whether the claims or statements identified in the complaint, or any portions of the complaint, violate § 33.3. (2) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments considering any mitigating or aggravating factors that the ALJ finds in the case, such as those described in § 33.31. (c) The ALJ shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the Department head. If the ALJ fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reasons for the delay and shall set a new deadline. (d) Unless the initial decision of the ALJ is timely appealed to the Department head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the Department head and shall be final and binding on the parties 30 days after it is issued by the ALJ. | ||||||||
| 34:34:1.1.1.1.15.0.7.38 | 34 | Education | 33 | PART 33—PROGRAM FRAUD CIVIL REMEDIES ACT | § 33.38 Reconsideration of initial decision. | ED | (a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt is presumed to be five days from the date of mailing in the absence of contrary proof. (b) Every motion under paragraph (a) of this section must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. The motion must be accompanied by a supporting brief. (c) Responses to the motion are allowed only upon request to the ALJ. (d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration. (e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision. (f) If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the Department head and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the Department head in accordance with § 33.39. (g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the Department head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the Department head in accordance with § 33.39. |
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