Goto Section: 1.1911 | 1.1913 | Table of Contents
FCC 1.1912
Revised as of October 1, 2008
Goto Year:2007 |
2009
Sec. 1.1912 Collection by administrative offset.
(a) Scope. (1) The term administrative offset has the meaning provided in
Sec. 1.1901.
(2) This section does not apply to:
(i) Debts arising under the Social Security Act, except as provided in 42
U.S.C. 404;
(ii) Payments made under the Social Security Act, except as provided for in
31 U.S.C. 3716(c) (see 31 CFR 285.4, Federal Benefit Offset);
(iii) Debts arising under, or payments made under, the Internal Revenue Code
(see 31 CFR 285.2, Tax Refund Offset) or the tariff laws of the United
States;
(iv) Offsets against Federal salaries to the extent these standards are
inconsistent with regulations published to implement such offsets under 5
U.S.C. 5514 and 31 U.S.C. 3716 (see 5 CFR part 550, subpart K, and 31 CFR
285.7, Federal Salary Offset);
(v) Offsets under 31 U.S.C. 3728 against a judgment obtained by a debtor
against the United States;
(vi) Offsets or recoupments under common law, State law, or Federal statutes
specifically prohibiting offsets or recoupments of particular types of
debts; or
(vii) Offsets in the course of judicial proceedings, including bankruptcy.
(3) Unless otherwise provided for by contract or law, debts or payments that
are not subject to administrative offset under 31 U.S.C. 3716 may be
collected by administrative offset under the common law or other applicable
statutory authority.
(4) Unless otherwise provided by law, administrative offset of payments
under the authority of 31 U.S.C. 3716 to collect a debt may not be conducted
more than 10 years after the Government's right to collect the debt first
accrued, unless facts material to the Government's right to collect the debt
were not known and could not reasonably have been known by the official or
officials of the Government who were charged with the responsibility to
discover and collect such debts. This limitation does not apply to debts
reduced to a judgment.
(5) In bankruptcy cases, the Commission will seek legal advice from its
counsel concerning the impact of the Bankruptcy Code, particularly 11 U.S.C.
106, 362, and 553, on pending or contemplated collections by offset.
(b) Mandatory centralized administrative offset. (1) The Commission is
required to refer past due, legally enforceable nontax debts which are over
180 days delinquent to the Treasury for collection by centralized
administrative offset. Debts which are less than 180 days delinquent also
may be referred to the Treasury for this purpose. See FCCS for debt
certification requirements.
(2) The names and taxpayer identifying numbers (TINs) of debtors who owe
debts referred to the Treasury as described in paragraph (b)(1) of this
section shall be compared to the names and TINs on payments to be made by
Federal disbursing officials. Federal disbursing officials include
disbursing officials of Treasury, the Department of Defense, the United
States Postal Service, other Government corporations, and disbursing
officials of the United States designated by the Treasury. When the name and
TIN of a debtor match the name and TIN of a payee and all other requirements
for offset have been met, the payment will be offset to satisfy the debt.
(3) Federal disbursing officials will notify the debtor/payee in writing
that an offset has occurred to satisfy, in part or in full, a past due,
legally enforceable delinquent debt. The notice shall include a description
of the type and amount of the payment from which the offset was taken, the
amount of offset that was taken, the identity of the creditor agency
requesting the offset, and a contact point within the creditor agency who
will respond to questions regarding the offset.
(4)(i) Before referring a delinquent debt to the Treasury for administrative
offset, and subject to any agreement and/or waiver to the contrary by the
debtor, the Commission shall ensure that offsets are initiated only after
the debtor:
(A) Has been sent written notice of the type and amount of the debt, the
intention of the Commission to use administrative offset to collect the
debt, and an explanation of the debtor's rights under 31 U.S.C. 3716; and
(B) The debtor has been given:
( 1 ) The opportunity to request within 15 days of the date of the written
notice, after which opportunity is deemed waived, by the debtor, to inspect
and copy Commission records related to the debt;
( 2 ) The opportunity, unless otherwise waived by the debtor, for a review
within the Commission of the determination of indebtedness; and
( 3 ) The opportunity to request within 15 days of the date of the written
notice, after which the opportunity is deemed waived by the debtor, for the
debtor to make a written agreement to repay the debt.
(ii) The Commission may omit the procedures set forth in paragraph (a)(4)(i)
of this section when:
(A) The offset is in the nature of a recoupment;
(B) The debt arises under a contract as set forth in Cecile Industries, Inc.
v. Cheney, 995 F.2d 1052 (Fed. Cir. 1993) (notice and other procedural
protections set forth in 31 U.S.C. 3716(a) do not supplant or restrict
established procedures for contractual offsets accommodated by the Contracts
Disputes Act); or
(C) In the case of non-centralized administrative offsets conducted under
paragraph (c) of this section, the Commission first learns of the existence
of the amount owed by the debtor when there is insufficient time before
payment would be made to the debtor/payee to allow for prior notice and an
opportunity for review. When prior notice and an opportunity for review are
omitted, the Commission shall give the debtor such notice and an opportunity
for review as soon as practicable and shall promptly refund any money
ultimately found not to have been owed to the Government.
(iii) When the Commission previously has given a debtor any of the required
notice and review opportunities with respect to a particular debt ( see 31
CFR 901.2), the Commission need not duplicate such notice and review
opportunities before administrative offset may be initiated.
(5) Before the Commission refers delinquent debts to the Treasury, the
Office of Managing Director must certify, in a form acceptable to the
Treasury, that:
(i) The debt(s) is (are) past due and legally enforceable; and
(ii) The Commission has complied with all due process requirements under 31
U.S.C. 3716(a) and its regulations.
(6) Payments that are prohibited by law from being offset are exempt from
centralized administrative offset. The Treasury shall exempt payments under
means-tested programs from centralized administrative offset when requested
in writing by the head of the payment certifying or authorizing agency.
Also, the Treasury may exempt other classes of payments from centralized
offset upon the written request of the head of the payment certifying or
authorizing agency.
(7) Benefit payments made under the Social Security Act (42 U.S.C. 301 et
seq. ), part B of the Black Lung Benefits Act (30 U.S.C. 921 et seq. ), and
any law administered by the Railroad Retirement Board (other than tier 2
benefits), may be offset only in accordance with Treasury regulations,
issued in consultation with the Social Security Administration, the Railroad
Retirement Board, and the Office of Management and Budget. See 31 CFR 285.4.
(8) In accordance with 31 U.S.C. 3716(f), the Treasury may waive the
provisions of the Computer Matching and Privacy Protection Act of 1988
concerning matching agreements and post-match notification and verification
(5 U.S.C. 552a(o) and (p)) for centralized administrative offset upon
receipt of a certification from a creditor agency that the due process
requirements enumerated in 31 U.S.C. 3716(a) have been met. The
certification of a debt in accordance with paragraph (b)(5) of this section
will satisfy this requirement. If such a waiver is granted, only the Data
Integrity Board of the Department of the Treasury is required to oversee any
matching activities, in accordance with 31 U.S.C. 3716(g). This waiver
authority does not apply to offsets conducted under paragraphs (c) and (d)
of this section.
(c) Non-centralized administrative offset. (1) Generally, non-centralized
administrative offsets are ad hoc case-by-case offsets that the Commission
conducts, at the Commission's discretion, internally or in cooperation with
the agency certifying or authorizing payments to the debtor. Unless
otherwise prohibited by law, when centralized administrative offset is not
available or appropriate, past due, legally enforceable nontax delinquent
debts may be collected through non-centralized administrative offset. In
these cases, a creditor agency may make a request directly to a
payment-authorizing agency to offset a payment due a debtor to collect a
delinquent debt. For example, it may be appropriate for a creditor agency to
request that the Office of Personnel Management (OPM) offset a Federal
employee's lump-sum payment upon leaving Government service to satisfy an
unpaid advance.
(2) The Commission will make reasonable effort to ensure that such offsets
may occur only after:
(i) The debtor has been provided due process as set forth in paragraph
(b)(4) of this section (subject to any waiver by the debtor); and
(ii) The payment authorizing agency has received written certification from
the Commission that the debtor owes the past due, legally enforceable
delinquent debt in the amount stated, and that the creditor agency has fully
complied with its regulations concerning administrative offset.
(3) Payment authorizing agencies shall comply with offset requests by
creditor agencies to collect debts owed to the United States, unless the
offset would not be in the best interests of the United States with respect
to the program of the payment authorizing agency, or would otherwise be
contrary to law. Appropriate use should be made of the cooperative efforts
of other agencies in effecting collection by administrative offset.
(4) When collecting multiple debts by non-centralized administrative offset,
agencies should apply the recovered amounts to those debts in accordance
with the best interests of the United States, as determined by the facts and
circumstances of the particular case, particularly the applicable statute of
limitations.
Goto Section: 1.1911 | 1.1913
Goto Year: 2007 |
2009
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