Permissibility of Administrative Law Judges Presiding Over Salary Pre-Offset Hearings, 40332-40335 [2021-15897]

Download as PDF 40332 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1– 888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. C. Collection of Information This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). D. Federalism and Indian Tribal Governments A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. khammond on DSKJM1Z7X2PROD with RULES E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. F. Environment We have analyzed this rule under Department of Homeland Security Directive 023–01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 VerDate Sep<11>2014 16:30 Jul 27, 2021 Jkt 253001 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one hour that will prohibit entry within 250-yard radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60] of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T09–0576 to read as follows: ■ § 165.T09–0576 Safety Zone; Maumee River; Toledo, OH. (a) Location. The following area is a safety zone: All U.S. navigable waters of the Maumee River within a within a 250-yard radius of the fireworks launch site located at position 41°38′54″ N 83°31′54″ W. All geographic coordinates are North American Datum of 1983 (NAD 83). (b) Enforcement period. This section will be enforced from 9:30 p.m. through 10:30 p.m. on September 3, 2021. The Captain of the Port Detroit, or a designated representative may suspend enforcement of the safety zone at any time. PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into, transiting or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit, or his designated representative. (2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated representative. (3) The ‘‘designated representative’’ of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on their behalf. The designated representative of the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port Detroit or a designated representative may be contacted via VHF Channel 16. (4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Detroit or a designated representative. Dated: July 22, 2021. Brad W. Kelly, Captain, U.S. Coast Guard, Captain of the Port Detroit. [FR Doc. 2021–16031 Filed 7–27–21; 8:45 am] BILLING CODE 9110–04–P 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 PreOffset Hearings Office of Finance and Operations (OFO), Department of Education. ACTION: Final regulations. AGENCY: 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. SUMMARY: These final regulations are effective July 28, 2021. DATES: FOR FURTHER INFORMATION CONTACT: Anthony Cummings, 550 12th Street SW, Room 10089, Potomac Center Plaza, Washington, DC 20202. Telephone: E:\FR\FM\28JYR1.SGM 28JYR1 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations (202) 245–7185. 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 1–800–877– 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. 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 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. 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 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 §§ 31.7(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 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. 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 §§ 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 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 40333 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 E:\FR\FM\28JYR1.SGM 28JYR1 40334 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:30 Jul 27, 2021 Jkt 253001 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 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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 www.govinfo.gov. 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 www.federalregister.gov. 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 1. The authority citation for part 31 continues to read as follows: ■ Authority: 5 U.S.C. 5514; 31 U.S.C. 3716. 2. Section 31.7 is amended by revising paragraph (a) to read as follows: ■ § 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 E:\FR\FM\28JYR1.SGM 28JYR1 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Rules and Regulations 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 3. The authority citation for part 32 continues to read as follows: ■ Authority: 5 U.S.C. 5514; 31 U.S.C. 3716. 4. Section 32.5 is amended by revising paragraph (d) to read as follows: ■ § 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 Local Agency [EPA–R09–OAR–2021–0222; FRL–8714–02– R9] Air Plan Approval; California; Mojave Desert Air Quality Management District Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Mojave Desert Air Quality Management District (MDAQMD or ‘‘District’’) portion of the State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs) from wood products coating operations. We are approving a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act). DATES: This rule will be effective on August 27, 2021. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R09–OAR–2021–0222. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information SUMMARY: 1114 Table of Contents I. Proposed Action II. Public Comments III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Proposed Action On April 21, 2021 (86 FR 20643), the EPA proposed to approve the following rule into the California SIP. Amended Wood Products Coating Operations ............................................................ II. Public Comments The EPA’s proposed action provided a 30-day public comment period. During this period, we received no comments. III. EPA Action No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. The August 24, 2020 version of Rule 1114 will replace the previously approved version of this rule in the SIP. IV. Incorporation by Reference In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 16:30 Jul 27, 2021 whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https:// www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. If you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact the person identified in the FOR FURTHER INFORMATION section. FOR FURTHER INFORMATION CONTACT: Robert Schwartz, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972–3286 or by email at schwartz.robert@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to the EPA. Rule title We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation. khammond on DSKJM1Z7X2PROD with RULES 40 CFR Part 52 Rule No. MDAQMD .......... VerDate Sep<11>2014 ENVIRONMENTAL PROTECTION AGENCY Jkt 253001 51.5, the EPA is finalizing the incorporation by reference of the MDAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). V. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 40335 08/24/2020 Submitted 11/18/2020 requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); E:\FR\FM\28JYR1.SGM 28JYR1

Agencies

[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 [www.gpo.gov]
[FR Doc No: 2021-15897]


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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: [email protected].
    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 www.govinfo.gov. 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 
www.federalregister.gov. 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