[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Proposed Rules]
[Pages 53830-53834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21617]
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POSTAL SERVICE
39 CFR Part 966
Rules of Practice in Proceedings Relative to Administrative
Offsets Initiated Against Former Employees of the Postal Service
AGENCY: Postal Service.
ACTION: Proposed rule.
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SUMMARY: This document proposes revisions to the rules of practice of
the Judicial Officer in proceedings relative to administrative offsets
initiated against former employees of the Postal Service. These
revisions would update the rules to reflect changes in the Postal
[[Page 53831]]
Service's debt collection regulations and procedures. This document
also proposes minor revisions to eliminate outdated provisions and
conform the rules to the Judicial Officer's existing practice.
DATES: Comments must be received on or before October 4, 2012.
ADDRESSES: Mail or deliver written comments to the Office of the
Judicial Officer, United States Postal Service, 2101 Wilson Boulevard,
Suite 600, Arlington, VA 22201-3078. Copies of all written comments
will be available for inspection and photocopying between 9 a.m. and 4
p.m., Monday through Friday, at the above address.
FOR FURTHER INFORMATION CONTACT: Administrative Judge Gary E. Shapiro,
2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078; Telephone:
(703) 812-1900.
SUPPLEMENTARY INFORMATION:
A. Executive Summary
The rules of practice in proceedings relative to administrative
offsets initiated against former employees of the Postal Service are
set forth in 39 CFR part 966. The Postal Service is concurrently
revising its regulations pertaining to collecting debts from former
employees contained in the Postal Service Employment and Labor
Relations Manual (ELM). These ELM revisions conform existing Postal
Service regulations to the requirements of the Debt Collection Act. The
revisions proposed in this document would revise 39 CFR part 966 to
bring its provisions into accord with the Postal Service's revised
regulations for collecting debts from former employees by
administrative offset. In addition, minor changes would be made to
eliminate outdated provisions and conform these rules to the existing
practice of the Judicial Officer.
B. Summary of Proposed Changes
Changes to Sec. 966.2(a) cross reference the Postal Service's new
ELM provisions pertaining to administrative offsets and also clarify
that such offsets are taken pursuant to the statutory authority of 31
U.S.C. 3716. Changes to Sec. 966.2(b) clarify that the regulations
contained in 39 CFR part 966 are intended to be consistent with the
Federal Claims Collection Standards promulgated jointly by the
Department of Justice and the Treasury, found at 31 CFR parts 900-904.
Changes to Sec. 966.3 update the definitions of part 966 to refer
to the Postal Service Accounting Service Center (ASC) or successor
installation instead of the area Postmaster/Installation head. The
definition of ``reconsideration'' in paragraph (i) is thus revised to
refer to action taken by the ASC. These changes accurately reflect the
Postal Service's current practices for collecting debts from former
employees, as collections from former employees are normally handled
through the ASC. Definitions are also updated to include the Federal
Claims Collection Standards, referenced elsewhere in the revised
regulations. Changes to paragraph (j) are non-substantive and provide
the parties with useful contact information.
Changes to Sec. 966.4 revise the procedures for filing a petition
for a hearing under part 966. These revisions align these regulations
with the Postal Service's revised ELM regulations pertaining to
collecting debts from former employees by administrative offset, the
Postal Service's current debt collection procedures, and current
practice before the Judicial Officer. Paragraphs (a)(2) and (3) are
revised to cross reference and incorporate the Postal Service's ELM
provisions, as well as the relevant section of the Debt Collection Act,
that detail the notice and due process rights former Postal Service
employees are afforded prior to the collection of a debt by
administrative offset. Changes to these paragraphs clarify that a
former employee may petition for review under part 966 either after
receiving the required notice and requesting and receiving a
reconsideration determination from the ASC, or after requesting
reconsideration but not receiving a determination within 60 days from
the request. Changes to paragraph (b) detail those situations whereby
the Postal Service may take an administrative offset without affording
an opportunity for pre-deprivation review to the former employee. In
accordance with the Judicial Officer's current practice and applicable
law, these changes further clarify that where prior notice and an
opportunity for review are omitted and the circumstances outlined in
revised paragraphs (b)(2), (3) and/or (4) do not apply, the former
employee may submit a petition for review under part 966 following the
offset. Changes to paragraph (c) clarify the procedural time limits for
filing a petition for review under revised part 966. In conformance
with revisions made elsewhere to part 966, ``Accounting Service
Center'' is substituted for ``Postmaster/Installation Head'' in
paragraph (d)(4). The remaining revisions to paragraph (d) are intended
to modernize requirements for the content of hearing petitions.
In Sec. 966.6, paragraph (a) is revised to reflect the Recorder's
correct hours, delete the requirement that parties submit documents in
triplicate, and clarify that parties should serve papers directly with
each other unless otherwise directed by the Hearing Official. Paragraph
(c) explicitly requires that parties discuss extensions of time with
the opposing party, as is the current practice. Paragraph (d) clarifies
that the General Counsel may delegate cases to a designee and
establishes a notice of appearance requirement in order to reduce the
possibility of misdirected orders. In addition, paragraph (d) is
revised to allow for non-attorney representatives. In current practice,
former employees are often represented by non-attorneys.
Section 966.7 is revised to simplify the answer's content,
eliminate the need for the Postal Service's representative to provide
certain information prematurely, and require that the answer clearly
explain the basis and calculation of the debt at issue.
Changes to Sec. 966.8(a)(3), (6), and (7) conform the regulations
to the existing practice of the Judicial Officer. Changes to Sec.
966.8(a)(9) similarly reflect the Judicial Officer's existing practice
and provide notice to parties that time extensions will not be
automatically granted.
Changes to Sec. 966.9 update the regulation to reflect the
existing practice of the Judicial Officer pertaining to hearing
transcripts, as well as the Hearing Official's ability, in case of a
party's unexcused absence, to continue with a hearing at the Hearing
Official's discretion.
Section 966.11 is revised to provide that the Initial Decision of
the presiding Administrative Judge may become the final determination
of the Postal Service without any further order by the Judicial
Officer, so long as no appeal has been filed and the Judicial Officer
has not decided to review the decision on his or her own motion.
Formerly, Sec. 966.12 detailed only circumstances under which the
Petitioner could be found in default and administrative offset could
thus be initiated. As revised, Sec. 966.12 provides for circumstances
under which either party may be found in default. This change is in
accordance with existing practice and decisions of the Judicial
Officer.
Section 966.13 is revised to reflect more accurately the definition
of ``ex parte'' discussions in the context of proceedings brought under
part 966.
Sections 966.5 and 966.10, dealing respectively with the effect of
filing a petition, and the initial decision of the Hearing Official,
are retained without change.
[[Page 53832]]
C. Effective Dates and Applicability
These revised rules would begin to govern proceedings under part
966 docketed on or after 30 days from their publication in final form.
List of Subjects in 39 CFR Part 966
Administrative practice and procedure, claims, Government
employees, wages.
For the reasons stated in the preamble, the Postal Service proposes
to amend 39 CFR part 966 as set forth below:
PART 966--RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO
ADMINISTRATIVE OFFSETS INITIATED AGAINST FORMER EMPLOYEES OF THE
POSTAL SERVICE
1. The authority citation for 39 CFR part 966 is revised to read as
follows:
Authority: 31 U.S.C. 3716; 39 U.S.C. 204, 401, 2601.
2. Section 966.2 is revised to read as follows:
Sec. 966.2 Scope of Rules.
(a) The rules in this part apply to any petition filed by a former
postal employee:
(1) To challenge the Postal Service's determination that he or she
is liable to the Postal Service for a debt incurred in connection with
his or her Postal Service employment, that the Postal Service intends
to collect by administrative offset pursuant to the authority of 31
U.S.C. 3716 and in accordance with the regulations contained in the
Employee and Labor Relations Manual, sections 470 and 480; and/or
(2) To challenge the administrative offset schedule proposed by the
Postal Service for collecting any such debt.
(b) The regulations in this part are consistent with the provisions
of the Federal Claims Collection Standards pertaining to administrative
offset.
3. Section 966.3 is revised to read as follows:
Sec. 966.3 Definitions.
(a) Accounting Service Center refers to the United States Postal
Service Eagan Accounting Service Center or its successor installation.
(b) Administrative offset refers to the withholding of money
payable by the Postal Service or the United States to, or held by the
Postal Service or the United States for, a former employee in order to
satisfy a debt determined to be owed by the former employee to the
Postal Service.
(c) Debt refers to any amount determined by the Postal Service to
be owed to the Postal Service by a former employee.
(d) Federal Claims Collection Standards or FCCS refers to
regulations promulgated by the Department of Justice and the Department
of the Treasury and codified at 31 CFR parts 900-904.
(e) Former employee refers to an individual whose employment with
the Postal Service has ceased. An employee is considered formally
separated from the Postal Service rolls as of close of business on the
effective date of his or her separation.
(f) General Counsel refers to the General Counsel of the Postal
Service, and includes a designated representative.
(g) Hearing Official refers to an Administrative Law Judge
qualified to hear cases under the Administrative Procedure Act, an
Administrative Judge appointed under the Contract Disputes Act of 1978,
or any other qualified person licensed to practice law designated by
the Judicial Officer to preside over a hearing conducted pursuant to
this part.
(h) Judicial Officer refers to the Judicial Officer, Associate
Judicial Officer, or Acting Judicial Officer of the Postal Service.
(i) Reconsideration refers to the review of an alleged debt and/or
the proposed offset schedule conducted by the Accounting Service Center
at the request of a former employee alleged to be indebted to the
Postal Service.
(j) Recorder refers to the Recorder, Judicial Officer Department,
United States Postal Service, 2101 Wilson Boulevard, Suite 600,
Arlington, VA 22201-3078. The recorder's telephone number is (703) 812-
1900, and the Judicial Officer's Web site is http://about.usps.com/who-we-are/judicial/welcome.htm. The fax number is (703) 812-1901.
4. Section 966.4 is revised to read as follows:
Sec. 966.4 Petition for a hearing and supplement to petition.
(a) A former employee who is alleged to be responsible for a debt
to the Postal Service may petition for a hearing under this part,
provided:
(1) Liability for the debt and/or the proposed offset schedule has
not been established under part 452.3 or part 462.3 of the Employee &
Labor Relations Manual (ELM);
(2) The former employee has received a Notice from the Accounting
Service Center in compliance with section 472.1 of the ELM and the
administrative offset provisions of the FCCS, informing the former
employee of the debt and an offset schedule to satisfy the debt, the
former employee's rights under 31 U.S.C. 3716(a), the right to request
reconsideration of the debt and/or offset schedule from the Accounting
Service Center, and the right to request review under this part; and
(3) The former employee has requested reconsideration of the Postal
Service's determination of the existence or amount of the alleged debt
and/or the offset schedule proposed by the Postal Service within thirty
(30) calendar days of receiving the notice referenced in paragraph
(a)(2), and either has received a reconsideration determination, or
within sixty (60) calendar days from the reconsideration request has
not received a reconsideration determination.
(b) Notwithstanding the provisions of this part, the Postal Service
may omit the procedures for notice and reconsideration in this part
under certain circumstances as set forth below:
(1) If the Postal Service first learns of the existence of the
amount owed by the former employee when there is insufficient time
before payment would be made to the former employee to allow for prior
notice and an opportunity for review under this part. When prior notice
and an opportunity for review are omitted, the Postal Service will give
the former employee notice and an opportunity for review as soon as
practicable and will promptly refund any money ultimately found not to
have been owed. In such circumstances whereby prior notice and an
opportunity for pre-deprivation review are omitted, the former employee
may submit a petition for review under this part.
(2) If an agency (including the Postal Service) has already given
the former employee any of the required notice and review opportunities
set forth in the FCCS with respect to a particular debt. In such a
situation, the Postal Service need not duplicate such notice and review
opportunities before taking an administrative offset.
(3) If a former bargaining unit employee of the Postal Service
pursues, in accordance with the applicable provisions of his or her
CBA, a grievance concerning the Postal Service's claim, including, but
not limited to, the existence of a debt owed to the Postal Service, the
amount of such debt, and/or the proposed repayment schedule, and none
of the circumstances set forth in ELM section 483.1 apply;
(4) If otherwise allowed by law, including, but not limited to, the
administrative offset provisions of the FCCS.
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(c) Within thirty (30) calendar days after the date of receipt of
the Accounting Service Center's decision upon reconsideration, after
the expiration of sixty (60) calendar days after a request for
reconsideration where a reconsideration determination is not made, or
following an administrative offset taken without prior notice and
opportunity for reconsideration pursuant to paragraph (b)(1) of this
section, the former employee must file a written, signed petition,
requesting a written or oral hearing, with the Recorder, Judicial
Officer Department, United States Postal Service, 2101 Wilson
Boulevard, Suite 600, Arlington, VA 22201-3078.
(d) The petition must include the following:
(1) The words, ``Petition for Review Under 39 CFR Part 966'';
(2) The former employee's name;
(3) The former employee's home address, email address (if
available), and telephone number, and any other address and telephone
number at which the former employee may be contacted about these
proceedings;
(4) A statement of the date the former employee received the
Accounting Service Center's decision upon reconsideration of the
alleged debt and a copy of the decision;
(5) A statement of the grounds upon which the former employee
objects to the Postal Service's determination of the debt or to the
administrative offset schedule proposed by the Postal Service for
collecting any such debt. This statement should identify with
reasonable specificity and brevity the facts, evidence, and legal
arguments, if any, which support the former employee's position; and
(6) Copies of all records in the former employee's possession which
relate to the debt and which the former employee may enter into the
record of the hearing.
(e) The former employee may, if necessary, file with the Recorder
additional information as a supplement to the petition at any time
prior to the filing of the answer to the petition under Sec. 966.7, or
at such later time as permitted by the Hearing Official upon a showing
of good cause.
5. Section 966.6 is revised to read as follows:
Sec. 966.6 Filing, docketing and serving documents; computation of
time; representation of parties.
(a) Filing. All documents required under this part must be filed by
the former employee or the General Counsel with the Recorder. (The
Recorder's normal business hours are between 8:45 a.m. and 4:45 p.m.,
eastern standard or daylight saving time as appropriate during the
year.) Unless otherwise directed by the Hearing Official, the party
filing any document shall send a copy thereof to the opposing party.
(b) Docketing. The Recorder will maintain a docket record of
proceedings under this part and will assign each petition a docket
number. After notification of the docket number, the former employee
and General Counsel should refer to it on any further filings regarding
the petition.
(c) Time computation. A filing period under the rules in this part
excludes the day the period begins, and includes the last day of the
period unless the last day is a Saturday, Sunday, or legal holiday, in
which event the period runs until the close of business on the next
business day. Requests for extensions of time shall be made in writing
stating good cause therefor, shall represent that the moving party has
contacted the opposing party about the request, or made reasonable
efforts to do so, and shall indicate whether the opposing party
consents to the extension.
(d) Representation of parties. After the filing of the petition,
further document transmittals for, or communications with, the Postal
Service shall be through its representative, the General Counsel, or
designee. The representative of the Postal Service, as designated by
the General Counsel, shall file a notice of appearance as soon as
practicable, and no later than the date for filing the answer. If a
former employee has a representative, further transmissions of
documents and other communications by and with the former employee
shall be made through his or her representative rather than directly
with the former employee.
6. Section 966.7 is revised to read as follows:
Sec. 966.7 Answer to petition.
Within thirty (30) days after the date of receipt of the petition,
the General Counsel shall file an answer to the petition, and attach
all available relevant records and documents in support of the Postal
Service's claim, or the administrative offset schedule proposed by the
Postal Service for collecting any such claim. The answer shall provide
a clear and detailed description of the basis for the Postal Service's
determination of the alleged debt and its calculation of the amount of
the alleged debt and/or its proposed offset schedule, as appropriate.
7. Section 966.8 is revised to read as follows:
Sec. 966.8 Authority and responsibilities of Hearing Official or
Judicial Officer.
(a) In processing a case under this part, the Hearing Official's
authority includes, but is not limited to, the following:
(1) Ruling on all offers, motions, or requests by the parties;
(2) Issuing any notices, orders, or memoranda to the parties
concerning the hearing procedures;
(3) Conducting telephone conferences with the parties to expedite
the proceedings (a memorandum of a telephone conference will be
transmitted to both parties). The Hearing Official's Memorandum of
Telephone Conference serves as the official record of that conference;
(4) Determining if an oral hearing is necessary, the type of oral
hearing that would be appropriate, and setting the place, date, and
time for such hearing;
(5) Administering oaths or affirmations to witnesses;
(6) Conducting the hearing in a manner to maintain discipline and
decorum while assuring that relevant, reliable, and probative evidence
is elicited on the disputed issues, and that irrelevant, immaterial, or
repetitious evidence is excluded. The Hearing Official in his or her
discretion may examine witnesses to ensure that a satisfactory record
is developed;
(7) Establishing the record in the case. Except as the Hearing
Official may otherwise order in his or her discretion, no proof shall
be received in evidence after completion of an oral hearing or, in
cases submitted on the written record, after notification by the
Hearing Official that the case is ready for decision. The weight to be
attached to any evidence of record will rest within the sound
discretion of the Hearing Official. The Hearing Official may require
either party, with appropriate notice to the other party, to submit
additional evidence on any relevant matter;
(8) Issuing an initial decision or one on remand; and
(9) Granting reasonable time extensions or other relief for good
cause shown.
(b) The Judicial Officer, in addition to possessing such authority
as is described elsewhere in this part, shall possess all of the
authority and responsibilities of a Hearing Official.
8. Section 966.9 is revised to read as follows:
Sec. 966.9 Opportunity for oral hearing.
An oral hearing generally will be held only in those cases which,
in the opinion of the Hearing Official, cannot be resolved by a review
of the
[[Page 53834]]
documentary evidence, such as when the existence, or amount, of a debt
turns on issues of credibility or veracity. An oral hearing includes an
in-person hearing, a telephonic hearing, or a hearing by video
conference. When the Hearing Official determines that an oral hearing
is not necessary, the decision shall be based solely on written
submissions. The Hearing Official shall arrange for the recording and
transcription of an oral hearing, which shall serve as the official
record of the hearing. The unexcused absence of a party at the time and
place set for hearing may not be occasion for delay at the discretion
of the Hearing Official. In the event of such absence, the hearing may
proceed without the participation of the absent party.
9. Section 966.11 is revised to read as follows:
Sec. 966.11 Appeal.
The initial or tentative decision will become the final agency
decision thirty (30) days after its issuance unless, before the
expiration of that time, a party files an appeal with the Judicial
Officer, or the Judicial Officer, in his or her sole discretion, elects
to conduct a review of the decision on his or her own initiative.
During such review or appeal consideration, the Judicial Officer will
accept all findings of fact in the original decision unless clearly
erroneous. If following appeal or review, the Judicial Officer affirms
the original decision, that decision becomes the final agency decision
with no further right of appeal within the agency.
10. Section 966.12 is revised to read as follows:
Sec. 966.12 Waiver of rights.
(a) The Hearing Official may determine that the former employee has
waived the right to a hearing, and that administrative offset may be
initiated if the former employee files a petition for hearing after the
period prescribed in these Rules and fails to demonstrate to the
satisfaction of the Hearing Official good cause for the delay; or has
filed a withdrawal of the former employee's previous petition for a
hearing.
(b) The Hearing Official may determine that the Postal Service has
waived the alleged debt at issue, and that the administrative offset
may not be initiated if the Postal Service fails to file the answer
within the period prescribed by the Rules and fails to demonstrate to
the satisfaction of the Hearing Official good cause for the delay; or
has filed a withdrawal of the debt determination at issue.
(c) In addition, whenever a record discloses the failure of either
party to file documents required by these rules, respond to notices or
correspondence from the Hearing Official, comply with orders of the
Hearing Official, participate in conferences, fail to treat the
proceedings with the proper decorum, or otherwise indicate an intention
not to continue the prosecution or defense of a petition, the Hearing
Official may issue an order requiring the offending party to show cause
why the petition should not be dismissed or granted, as appropriate. If
the offending party shall fail to show cause, the Hearing Official may
take such action as he or she deems reasonable and proper under the
circumstances, including dismissal or granting of the petition as
appropriate.
11. Section 966.13 is revised to read as follows:
Sec. 966.13 Ex parte communications.
Ex parte communications are not allowed between a party and the
Hearing Official or the Official's staff. For these purposes, ex parte
communication means an oral or written communication, not on the public
record, with one party only with respect to which reasonable prior
notice to all parties is not given, but it shall not include requests
for status reports or procedural matters. A memorandum of any
communication between the Hearing Official and a party will be
transmitted to both parties.
Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
[FR Doc. 2012-21617 Filed 8-31-12; 8:45 am]
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