Rule2021-15897
Permissibility of Administrative Law Judges Presiding Over Salary Pre-Offset Hearings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 28, 2021
Effective
July 28, 2021
Issuing agencies
Education Department
Abstract
The Department of Education (Department) amends its regulations regarding salary pre-offset hearings to expressly permit administrative law judges (ALJs) to act as the presiding officers.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 142 (Wednesday, July 28, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 142 (Wednesday, July 28, 2021)]
[Rules and Regulations]
[Pages 40332-40335]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15897]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Parts 31 and 32
[Docket ID ED-2021-OFO-0083]
RIN 1880-AA90
Permissibility of Administrative Law Judges Presiding Over Salary
Pre-Offset Hearings
AGENCY: Office of Finance and Operations (OFO), Department of
Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Department of Education (Department) amends its
regulations regarding salary pre-offset hearings to expressly permit
administrative law judges (ALJs) to act as the presiding officers.
DATES: These final regulations are effective July 28, 2021.
FOR FURTHER INFORMATION CONTACT: Anthony Cummings, 550 12th Street SW,
Room 10089, Potomac Center Plaza, Washington, DC 20202. Telephone:
[[Page 40333]]
(202) 245-7185. Email: <a href="/cdn-cgi/l/email-protection#41002f35292e2f386f02342c2c282f26320124256f262e37"><span class="__cf_email__" data-cfemail="0f4e617b67606176214c7a62626661687c4f6a6b21686079">[email protected]</span></a>.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION: As explained more fully below, the
Department is revising its regulations in 34 CFR parts 31 and 32 to
permit ALJs to preside over salary pre-offset hearings.
Statute: Under 20 U.S.C. 1221e-3, the Secretary is vested with
broad authority to make, promulgate, issue, rescind, and amend rules
and regulations governing the manner and operation of, and governing
the applicable programs administered by, the Department. This provision
is mirrored in 20 U.S.C. 3474, providing the Secretary authority to
prescribe such rules and regulations as the Secretary determines
necessary or appropriate to administer and manage the functions of the
Secretary or the Department. In particular, under 20 U.S.C. 1234(f)(1),
the Secretary shall prescribe by regulation the rules for conducting
proceedings within its Office of Administrative Law Judges (OALJ). Such
rules must conform to the Administrative Procedure Act (APA) at 5
U.S.C. 554, 556, and 557.
Under 5 U.S.C. 5514(a)(1), the Secretary may collect debts owed to
the United States by employees of the Federal Government. Such debts
are commonly recoupment of overpayments made by the Department to an
employee due to a miscalculation of the employee's level of pay or a
failure of the Department to correctly calculate a deduction to the
employee's pay. To collect these debts, the Secretary generally imposes
deductions to the employee's pay in regular installments. This process
of debt collection is referred to as administrative offset. 31 U.S.C.
3716.
Prior to implementing an administrative offset, an employee is
entitled to, among other things, a minimum of 30 days' written notice,
informing the employee of the nature and amount of the indebtedness and
the agency's intention to initiate an administrative offset. 5 U.S.C.
5514(a)(2)(A). After receipt of the notice, the employee is entitled to
request a hearing on the agency's determination concerning the
existence or the amount of the debt or to challenge the terms of any
nonvoluntary repayment schedule the agency intends to implement. 5
U.S.C. 5514(a)(2)(D).
A hearing conducted under the authority of 5 U.S.C. 5514(a)(2)(D)
may not be conducted by an individual under the supervision or control
of the head of the agency, except that nothing in this sentence shall
be construed to prohibit the appointment of an ALJ. 5 U.S.C.
5514(a)(2).
The Secretary is required to establish regulations to carry out the
statutory provisions for administrative offsets described above. 5
U.S.C. 5514(b)(1); 31 U.S.C. 3716(b)(2).
Current Regulations: Under 34 CFR 31.7(a), a hearing conducted for
a salary offset for a current or former Federal employee indebted to
the United States under a program administered by the Secretary is
conducted by a hearing official who is neither an employee of the
Department nor otherwise under the supervision or control of the
Secretary.
Under 34 CFR 32.5(d), a salary pre-offset hearing held to recover
overpayments of pay or allowances paid to a current or former
Department employee is conducted by a hearing official who is not an
employee of the Department or under the supervision or control of the
Secretary.
New Regulations: Revised Sec. Sec. 31.7(a) and 32.5(d) expressly
provide that ALJs are not prohibited from presiding over hearings for
the collection of debts owed to the United States by current or former
employees of the Federal Government.
Reasons: The Department employs ALJs within OALJ. Congress
established OALJ to consider cases before the Department involving
hearings for recovery of funds, withholding hearings, cease-and-desist
hearings, and other proceedings designated by the Secretary. 20 U.S.C.
1234(a); 34 CFR 81.3. The Secretary appoints ALJs to OALJ in accordance
with 5 U.S.C. 3105 and 20 U.S.C. 1234(b).
The statutory authority for salary pre-offset hearings prohibits
individuals under the supervision or control of an agency head from
presiding but specifically excepts ALJs from that prohibition. 5 U.S.C.
5514(a)(2). However, a review of the Department's regulations revealed
a disconnect between the regulations and the statute. Sections 31.7(a)
and 32.5(d) mirror the statutory prohibition on individuals under the
supervision or control of the Secretary presiding over hearings, but
they do not include the statute's exception, allowing ALJs to preside
over such hearings.
The omission in Sec. Sec. 31.7(a) and 32.5(d) of the exception for
ALJs was likely due to a drafting oversight. This amendment of the
regulations harmonizes the regulations with the express statutory
exception that ALJs are not prohibited from presiding over pre-offset
hearings involving collection of indebtedness to the United States from
Federal employees.
As contemplated in the statutory exception, the Department's ALJs
are well-suited for the task of presiding over such hearings because
they act with impartiality and independence. ALJs are subject to less
supervision and control by the Secretary than ordinary Department
employees. For example, pursuant to 5 CFR 930.206, ALJs may not be
rated on their job performance and may not receive a monetary or
honorary award or incentive. Similarly, pursuant to 5 U.S.C. 7521, ALJs
may not be removed from their positions or have other specified actions
taken against them except by the independent action of the Merit
Systems Protection Board.
Therefore, the Department is revising its regulations to correct
the drafting oversight and expressly permit ALJs to preside over salary
pre-offset hearings.
Waiver of Proposed Rulemaking and Delayed Effective Date
Under the APA (5 U.S.C. 553), the Department generally offers
interested parties the opportunity to comment on proposed regulations.
These regulations only govern the procedures for conducting
administrative offset hearings to which the parties are the Department
and current or former employees. As such, these regulations make
procedural changes only and do not establish substantive policy. The
regulations are, therefore, rules of agency practice and procedure and
exempt from notice and comment rulemaking under 5 U.S.C. 553(b)(A).
Moreover, the APA provides that an agency is not required to conduct
notice and comment rulemaking when the agency for good cause finds that
notice and public comment thereon are impracticable, unnecessary, or
contrary to the public interest. 5 U.S.C. 553(b)(B). Rulemaking is
``unnecessary'' when ``the administrative rule is a routine
determination, insignificant in nature and impact, and inconsequential
to the industry and to the public.'' Utility Solid Waste Activities
Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), quoting U.S.
Department of Justice, Attorney General's Manual on the Administrative
Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004,
1016 (D.S.C. 1983). Because we are amending these procedural
regulations to align them more closely with the applicable statutory
provision, under 5 U.S.C. 553(b)(B), the Secretary has determined that
proposed regulations are unnecessary.
The APA generally requires that regulations be published at least
30 days before their effective date, unless the
[[Page 40334]]
agency has good cause to implement its regulations sooner (5 U.S.C.
553(d)(3)). As previously stated, because the final regulations merely
reflect an applicable statutory provision and address agency procedure,
there is good cause to waive the delayed effective date in the APA and
make the final regulations effective upon publication.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) must determine whether this regulatory action is ``significant''
and, therefore, subject to the requirements of the Executive order and
subject to review by OMB. Section 3(f) of Executive Order 12866 defines
a ``significant regulatory action'' as an action likely to result in a
rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f)(1) of Executive Order
12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency --
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
In choosing among alternative regulatory approaches, we selected
those approaches that maximize net benefits. Based on the analysis that
follows, the Department believes that these final regulations are
consistent with the principles in Executive Order 13563. We also have
determined that this regulatory action does not unduly interfere with
State, local, and Tribal governments in the exercise of their
governmental functions.
In accordance with both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs associated
with this regulatory action are those resulting from statutory
requirements and those we have determined as necessary for
administering the Department's programs and activities. Because this
regulatory action does not implicate any new process or other financial
commitment or burden, this regulatory action will not create any new
costs.
Regulatory Flexibility Act Certification
Because notice-and-comment rulemaking is not necessary for this
procedural rule, the Regulatory Flexibility Act (96 Pub. L. 354, 5
U.S.C. 601-612) does not apply.
Paperwork Reduction Act of 1995
The final regulations do not create any new information collection
requirements.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document and a copy of the application package in an
accessible format. The Department will provide the requestor with an
accessible format that may include Rich Text Format (RTF) or text
format (txt), a thumb drive, an MP3 file, braille, large print,
audiotape, or compact disc, or other accessible format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or Portable Document Format (PDF). To
use PDF, you must have Adobe Acrobat Reader, which is available free at
the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects
34 CFR Part 31
Claims, Government employees, Grant programs--education, Loan
programs--education, Student aid, Wages.
34 CFR Part 32
Claims, Government employees, Wages.
Denise L. Carter,
Acting Assistant Secretary for Finance and Operations.
For the reasons discussed in the preamble, the Secretary amends
parts 31 and 32 of title 34 of the Code of Federal Regulations as
follows:
PART 31--SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO
THE UNITED STATES UNDER PROGRAMS ADMINISTERED BY THE SECRETARY OF
EDUCATION
0
1. The authority citation for part 31 continues to read as follows:
Authority: 5 U.S.C. 5514; 31 U.S.C. 3716.
0
2. Section 31.7 is amended by revising paragraph (a) to read as
follows:
Sec. 31.7 Hearing procedures.
(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
[[Page 40335]]
the Secretary, except that this prohibition does not apply to the
Department's administrative law judges.
* * * * *
PART 32--SALARY OFFSET TO RECOVER OVERPAYMENTS OF PAY OR ALLOWANCES
FROM DEPARTMENT OF EDUCATION EMPLOYEES
0
3. The authority citation for part 32 continues to read as follows:
Authority: 5 U.S.C. 5514; 31 U.S.C. 3716.
0
4. Section 32.5 is amended by revising paragraph (d) to read as
follows:
Sec. 32.5 Pre-offset hearing--general.
* * * * *
(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.
* * * * *
[FR Doc. 2021-15897 Filed 7-27-21; 8:45 am]
BILLING CODE 4000-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 28, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.