DOT 49 CFR PART 92-2010 RECOVERING DEBTS TO THE UNITED STATES BY SALARY OFFSET.pdf

1、682 49 CFR Subtitle A (10110 Edition) 91.11 (d) The Assistant Secretary shall, on the basis of the application and such other data as may be available, com-pute the amount to which such carrier is entitled. (e) Subject to the provisions of 91.13(b), upon approving the computa-tion made by the Assist

2、ant Secretary, the Secretary shall issue such certifi-cate as will entitle each such carrier to payment from the account maintained by the Secretary of the Treasury for this purpose. 91.11 Standards. (a) To minimize the burden of imple-menting this part on the United States, on U.S. flag air carrier

3、s and on foreign air carriers, estimates and peri-odic adjustments will be used to deter-mine the amount of discrimination and compensatory charges therefor. (b) For the purpose of determining the amount of excessive or otherwise discriminatory charges imposed upon U.S. flag air carriers by an entit

4、y: (1) A service or use of airport or air-way property includes, but is not lim-ited to, fueling, food service, ticketing, baggage handling, runways, ramps, parking areas, navigational aids, com-munications facilities or any other service necessary and incidental to the conduct of a flight. (2) An e

5、xcessive or otherwise dis-criminatory charge includes, but is not limited to, a charge substantially above the cost of providing a service or any charge for a service that is sub-stantially inferior to that which the U.S. flag air carrier could have pro-vided for itself, at the same cost, by contrac

6、t or otherwise (see also 91.3). (c) In determining the amount of compensatory charge: (1) The total amount of excessive or otherwise discriminatory charges lev-ied against U.S. flag air carriers will be estimated in dollars. (2) The total volume of operations to the United States by air carriers of

7、the nation concerned will be estimated for the succeeding six-month period. (3) The total amount of excessive or otherwise discriminatory charges in paragraph (c)(1) of this section will be divided by the total volume of oper-ations in paragraph (c)(2) of this sec-tion, and (4) The quotient thus com

8、puted (which may be adjusted to reflect the type of aircraft) will constitute the compensatory charge to be collected as a condition to acceptance of the gen-eral declaration at the time of landing or takeoff of such air carriers of the nation concerned. 91.13 Refunds. (a) Where, in his discretion,

9、the Sec-retary finds that good cause has been shown, the Secretary may authorize a refund of collected compensatory charges. For purposes of this section, good cause includes, but is not limited to, an error of fact, a miscalculation, or a determination that an original conclusion of entitlement was

10、 insuffi-cient, invalid, erroneous or invalidated by subsequent events. (b) Notwithstanding the provisions of 91.9(e) the Secretary may suspend for a reasonable time the issuance of a cer-tificate of entitlement upon a showing by a payor of compensatory charges that there is a substantial likelihood

11、 that the payor will make a showing of good cause under 91.13(a). (c) Notwithstanding the provisions of paragraphs (a) and (b) of this section, the issuance of a certificate of entitle-ment under 91.9(e) or the distribution to U.S. flag air carriers of funds col-lected under this part shall be with

12、prejudice to any claim for refund under this section. PART 92RECOVERING DEBTS TO THE UNITED STATES BY SALARY OFFSET Sec. 92.1 Purpose. 92.3 Scope. 92.5 Definitions. 92.7 Notice, hearing, written response and decision. 92.9 Exceptions to notice, hearing, written response, and final decision. 92.11 De

13、mand for payment. 92.13 Request for hearing. 92.15 Request for hearing after time expires. 92.17 Form of hearings and written deci-sions. 92.19 Obtaining the services of a hearing of-ficial. 92.21 Deduction from pay. 92.23 Collection. 92.25 Source of deductions. 92.27 Duration of deductions. VerDate

14、 Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00692 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-683 Office of the Secretary of Transportation 92.5 92.29 Limitation

15、on amount of deductions. 92.31 Liquidation from final payment. 92.33 Recovery from other payments due a separated employee. 92.35 Interest, penalties and administrative costs. 92.37 Non-waiver of rights by payment. 92.39 Refunds. 92.41 Requesting recovery when the Depart-ment is not the paying agenc

16、y. 92.43 Requests for recovery when the De-partment is the paying agency. 92.45 Other debt collections. AUTHORITY: 5 U.S.C. 5514, as amended; 5 CFR part 550, subpart K; 4 CFR parts 101105. SOURCE: 53 FR 4171, Feb. 12, 1988, unless otherwise noted. 92.1 Purpose. This part implements 5 U.S.C. 5514 (In

17、stallment Deduction for Indebted-ness to the United States), as amended by the Debt Collection Act of 1982 (Pub. L. 97365, 96 Stat. 1749, 1751). It supple-ments 5 CFR part 550, subpart K, and the Federal Claims Collections Stand-ards (4 CFR parts 101105) issued jointly by the Comptroller General of

18、the United States and the Attorney Gen-eral of the United States under 31 U.S.C. 3711(e)(2). It sets forth the proce-dures by which the Department of Transportation (DOT), including its op-erating elements (see 49 CFR 1.3): (a) Collects debts owed to the United States by current and former DOT em-pl

19、oyees; (b) Determines and collects interest and other charges on that indebted-ness. (c) Offsets the salary of DOT employ-ees to collect debts owed to the United States by those employees; and, (d) Obtains salary offset to collect debts owed to the United States by em-ployees of other agencies under

20、 pro-grams administered by DOT. 92.3 Scope. The provisions of this part are appli-cable to the indebtedness of a current or former employee of DOT incurred under any program administered by DOT. The provisions of this part do not apply to the collection of indebtedness by authority other than 5 U.S.

21、C. 5514. 92.5 Definitions. As used in this part: (a) Agency means an Executive Agen-cy as defined by section 105 of title 5, United States Code, the U.S. Postal Service, the U.S. Postal Rate Commis-sion, a Military Department as defined by section 102 of title 5, United States Code, an agency or cou

22、rt in the judicial branch, an agency of the legislative branch, and any other independent es-tablishments which are entities of the Federal Government. In DOT each op-erating element will act for the agency in collecting debts under this rule. (b) Creditor agency means the agency to which the debt i

23、s owed. (c) Debt means an amount owed to the United States from sources which include, but are not necessarily limited to, erronerous payments made to em-ployees, overpayments of benefits, sal-ary or other allowances, loans insured or guaranteed by the United States and all other amounts due the Uni

24、ted States from fees, leases, rents, royal-ties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures (except those arising under the Uni-form Code of Military Justice) and all other similar sources. This term does not include a Government c

25、laim aris-ing under the Internal Revenue Code of 1954 (26 U.S.C. 19602) as amended; the Social Security Act (42 U.S.C. 301 1397f); the tariff laws of the United States; or any case where collection of a debt by salary offset is explicitly pro-vided for or prohibited by another stat-ute (e.g., emerge

26、ncy and travel ad-vances under 5 U.S.C. 5522, 5705 or 5724 and employee training expenses under 5 U.S.C. 4108). (d) Debt Claim Form means the form used by DOT when requesting that an agency, other than DOT, assist in the recovery of funds. (e) Delinquent debt means a debt which has not been paid by

27、the date specified in the agencys initial written notification or applicable contractual agreement, unless other satisfactory payment arrangements have been made by that date, or if, at any time there-after, the debtor fails to satisfy obliga-tions under a payment agreement with the creditor agency.

28、 (f) Disposable pay means that part of current basic pay, special pay, incen-tive pay, retired pay, retainer pay, or VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00693 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproducti

29、on or networking permitted without license from IHS-,-,-684 49 CFR Subtitle A (10110 Edition) 92.7 in the case of an employee not entitled to basic pay, other authorized pay re-maining after the deduction of any amount required by law to be withheld. (See 5 CFR 581.105 (b) through (f) for items requ

30、ired by law to be withheld, and therefore excluded from disposable pay for the purposes of this regula-tion). (g) DOT operating element (see 49 CFR 1.3) means a DOT Operating Adminis-tration including (1) U.S. Coast Guard. (2) Federal Aviation Administration. (3) Federal Highway Administration. (4)

31、Federal Railroad Administration. (5) National Highway Traffic Safety Administration. (6) Urban Mass Transportation Ad-ministration. (7) St. Lawrence Seaway Develop-ment Corporation. (8) Maritime Administration. (9) Research and Special Program Ad-ministration. (10) The Office of the Secretary. (h) E

32、mployee means a current or former employee of a Federal agency, including a member of the Armed Forces (including retired members) or a Reserve of the Armed Forces (Re-serves). However, employees paid from non-appropriated funds are not in-cluded. (i) FCCS means the Federal Claims Collection Standar

33、ds, 4 CFR Ch. II, jointly published by the Department of Justice and the General Accounting Of-fice. (j) Hearing means an informal con-ference before a hearing official in which the employee and the DOT oper-ating element are given an opportunity to present evidence, witnesses, and ar-gument. The he

34、aring official shall be either an administrative law judge or an individual not under the supervision or control of the Department. (k) Paying agency means the agency authorizing the payment of the em-ployees current pay. (l) Salary offset means an administra-tive offset to collect a debt under 5 U.

35、S.C. 5514 by deduction(s) at one or more officially established pay inter-vals from the current pay account of a present or former employee with or without his or her consent. It includes a single offset from the final salary of an employee whose employment ends. (m) Waiver means the cancellation, r

36、emission, forgiveness or non-recovery of a debt allegedly owed by an em-ployee to an agency as permitted or re-quired by 5 U.S.C. 5584, 5 U.S.C. 8346(b), 10 U.S.C. 2774, or 32 U.S.C. 716, or any other law. 92.7 Notice, hearing, written re-sponse and decision. (a) Except as provided in 92.9 of this p

37、art, each employee from whom the de-partment proposes to offset a debt against the Federal pay of an employee who is indebted to the United States under a program administrated by DOT under these regulations is entitled to receive a minimum of 30 days written notice as described in 92.11 of this par

38、t (see also 92.21(a). (b) Each employee owing a debt to the United States which will be col-lected by salary offset is entitled to pe-tition for a hearing before collection starts. This petition shall be filed di-rectly with the accounting or finance office of the DOT creditor operating element whic

39、h shall make appropriate hearing arrangements consistent with law and regulations. The DOT creditor operating element shall provide an ex-planation of the rights of the em-ployee. If a hearing is provided, the fol-lowing issues shall be heard: (1) The determination of the DOT creditor operating elem

40、ent concerning the existence and amount of the debt; and (2) The terms of the repayment schedule, if not previously established by written agreement between the em-ployee and the DOT creditor operating element. (See 92.21(c) regarding copy of written decision by hearing officer describing method and

41、 amount of sal-ary offset). 92.9 Exceptions to notice, hearing, written response, and final deci-sion. (a) Exceptions. The procedural re-quirements of 5 U.S.C. 5514 do not apply to recovery by way of retroactive VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00694 Fmt 8010 Sfmt 8010 Y:SG

42、ML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-685 Office of the Secretary of Transportation 92.11 deductions for administrative adjust-ments associated with the Federal ben-efits program. In such

43、 cases the con-tent of the notification to employees is stated in 92.9(b). (b) Simplified procedures to be followed. In the event that a retroactive deduc-tion from pay or allowances is required to recover an insufficiency of deduc-tions arising through normal proc-essing delays, and those insuffici

44、ent de-ductions did not occur in more than four pay periods, rather than following the specific procedures required by 5 U.S.C. 5514(a)(2), and set forth in 92.11 through 92.17 of this part, the DOT creditor operating element shall issue in advance of the collection a sim-plified notice to the emplo

45、yee that: (1) Because of the employees elec-tion for changes in voluntary payroll deduction, corresponding deductions shall be imposed on the employees sal-ary to cover the period between the ef-fective date of the election and the first regular withholding. The em-ployee may dispute the amount of t

46、he retroactive collection by notifying his or her accounting or finance officer; or (2) Due to a normal ministerial ad-justment in pay or allowances which could not be placed into effect imme-diately, future pay will be reduced to permit the DOT creditor operating ele-ment to recover any excess pay

47、or al-lowances received by the employee. The employee may dispute the amount of the retroactive collection by noti-fying his or her accounting or finance officer. (c) Limitation on exceptions. The ex-ceptions described in paragraph (a) of this section shall not include a recov-ery required to be mad

48、e for any reason other than routine processing delays in putting the change into effect, even if the period of time for which the amounts must be retroactively recov-ered is less than four pay periods. If normal processing delays exceed four pay periods, then the full procedures prescribed under 5 U

49、.S.C. 5514 and 92.11 through 92.17 of this part will be extended to the employee. 53 FR 4171, Feb. 12, 1988, as amended at 53 FR 51279, Dec. 21, 1988 92.11 Demand for payment. (a) The DOT creditor operating ele-ment shall send a debtor a total of three progressively stronger written demands at not more than 30-day inter-vals, unless a response to the first or second demand indicates that a further demand would be futile and the debt-ors response