Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 202 2457185. Email:
Anthony.Cummings@ed.gov.
If you use a telecommunications device for the deaf TDD or a text telephone TTY, call the Federal Relay Service FRS, toll free, at 1800877
8339.
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. 1221e3, 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. 1234f1, 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. 5514a1, 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 employees level of pay or a failure of the Department to correctly calculate a deduction to the employees pay. To collect these debts, the Secretary generally imposes deductions to the employees 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 agencys intention to initiate an administrative offset. 5 U.S.C.
5514a2A. After receipt of the notice, the employee is entitled to request a hearing on the agencys 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. 5514a2D.
A hearing conducted under the authority of 5 U.S.C. 5514a2D may
khammond on DSKJM1Z7X2PROD with RULES

SUPPLEMENTARY INFORMATION:

VerDate Sep<11>2014

16:30 Jul 27, 2021

Jkt 253001

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. 5514a2.
The Secretary is required to establish regulations to carry out the statutory provisions for administrative offsets described above. 5 U.S.C. 5514b1; 31
U.S.C. 3716b2.
Current Regulations: Under 34 CFR
31.7a, 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 32.5d, a salary preoffset 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 31.7a and 32.5d 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. 1234a; 34 CFR
81.3. The Secretary appoints ALJs to OALJ in accordance with 5 U.S.C. 3105
and 20 U.S.C. 1234b.
The statutory authority for salary preoffset 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. 5514a2.
However, a review of the Departments regulations revealed a disconnect between the regulations and the statute.
Sections 31.7a and 32.5d mirror the statutory prohibition on individuals under the supervision or control of the Secretary presiding over hearings, but they do not include the statutes exception, allowing ALJs to preside over such hearings.
The omission in 31.7a and 32.5d 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
PO 00000

Frm 00035

Fmt 4700

Sfmt 4700

40333

the United States from Federal employees.
As contemplated in the statutory exception, the Departments 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. 553bA.
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. 553bB.
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 Generals 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. 553bB, 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
E:FRFM28JYR1.SGM

28JYR1