Subpart A — Administrative Offset
Authority:
31 U.S.C. 3716, 31 CFR 901.3.
Source:
58 FR 64370, Dec. 7, 1993, unless otherwise noted.
204.1 — Applicability and scope.
(a) The procedures authorized for administrative offset are contained in Section 10 of the Debt Collection Act (codified at 31 U.S.C. 3716). The Act requires that notice procedures be observed by the agency. The debtor is also afforded an opportunity to inspect and copy government records pertaining to the claim, enter into an agreement for repayment, and to a review of the claim (if requested). Like salary offset, agencies may cooperate with one another in order to effectuate recovery of the claim.
(b) The provisions of this subpart apply to the collection of debts owed to the United States arising from transactions with the Securities and Exchange Commission (Commission). These regulations are consistent with the Debt Collection Act and the Federal Claims Collection Standards on administrative offset issued jointly by the Department of Justice and the Department of the Treasury (31 CFR 901.3).
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54130, Oct. 26, 2001]
204.2 — Definitions.
(a) Administrative offset as defined in 31 U.S.C. 3701(a)(1) means withholding funds payable by the United States (including funds payable by the United States on behalf of a State government) to, or held by the United States for, a person to satisfy a claim.
(b) Person includes a natural person or persons, profit or nonprofit corporation, partnership, association, trust, estate, consortium, or other entity which is capable of owing a debt to the United States Government except that agencies of the United States, or of any State or local government shall be excluded.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54130, Oct. 26, 2001]
204.3 — General.
(a) The Chairperson (or designee) may initiate administrative offset with regard to debts owed by a person to another agency of the United States Government, upon receipt of a request from the head of another agency or his or her designee, and a certification that the debt exists and that the person has been afforded the necessary due process rights.
(b) The Chairperson (or designee) may notify the Department of the Treasury of delinquent debts for purposes of administrative offset, and may request another agency which holds funds payable to a Commission debtor to offset that debt against the funds held; the Commission will provide certification that:
(1) The debt is past due and legally enforceable; and
(2) The person has been afforded the necessary due process rights.
(c) No collection by administrative offset shall be made on any debt that has been outstanding for more than 10 years unless facts material to the Government's right to collect the debt were not known, and reasonably could not have been known, by the official or officials responsible for discovering the debt. This limitation does not apply to debts reduced to judgment.
(d) Administrative offset under this subpart may not be initiated against:
(1) A debt in which administrative offset of the type of debt involved is explicitly provided for or prohibited by another statute;
(2) Debts owed by other agencies of the United States or by any State or local Government; or
(3) Debts arising under the Internal Revenue Code of 1954; the Social Security Act; or the tariff laws of the United States.
(e) The procedures for administrative offset in this subpart do not apply to the offset of Federal salaries under 5 U.S.C. 5514 or Federal tax refunds under 31 U.S.C. 3720A and 31 CFR 285.2.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54130, Oct. 26, 2001]
204.4 — Demand for payment — notice.
(a) Before offset is made, a written notice will be sent to the debtor. This notice will include:
(1) The type and amount of the debt;
(2) The date when payment is due (not less than thirty days from the date of mailing or hand delivery of the notice);
(3) The agency's intention to collect the debt by administrative offset, including asking the assistance of other Federal agencies to help in the offset whenever possible, if the debtor has not made payment by the payment due date or has not made an arrangement for payment by the payment due date;
(4) The right of the debtor to inspect and copy the Commission's records related to the claim;
(5) The right of the debtor to request a review of the determination of indebtedness and, in the circumstances described in § 204.7, to request an oral hearing from the Commission's designee; and
(6) The right of the debtor to enter into a written agreement with the agency to repay the debt in some other way.
(b) Claims for payment of travel advances and employee training expenses require notification prior to administrative offset as described in this section. Because no oral hearing is required, notice of the right to a hearing need not be included in the notification.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54130, Oct. 26, 2001]
204.5 — Debtor's failure to respond.
If the debtor fails to respond to the notice described in § 204.4(a) by the proposed effective date specified in the notice, the Commission may take further action under this section or under the Federal Claims Collection Standards (31 CFR 901.3). The commission may collect by administrative offset if the debtor:
(a) Has not made payment by the payment due date;
(b) Has not requested a review of the claim within the agency as set out in § 204.6; or
(c) Has not made an arrangement for payment by the payment due date.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54130, Oct. 26, 2001]
204.6 — Agency review.
(a) To the extent that a debt owed has not been established by judicial or administrative order, a debtor may request a hearing concerning the existence or amount of the debt or the terms of repayment. With respect to debts established by a judicial or administrative order, a debtor may request a hearing concerning the payment or other discharge of the debt. A request to review a disputed debt must be submitted to the Commission official who provided notification within 30 calendar days of the receipt of the written notice described in § 204.4(c).
(b) The Commission will provide a copy of the record to the debtor and advise him/her to furnish available evidence to support his or her position. Upon receipt of the evidence, the written record of indebtedness will be reviewed and the debtor will be informed of the results of that review.
(c) Pending the resolution of a dispute by the debtor, transactions in any of the debtor's accounts maintained by the Commission may be temporarily suspended. Depending on the type of transaction, the suspension could preclude its payment, removal, or transfer, as well as prevent the payment of interest or discount due thereon. Should the dispute be resolved in the debtor's favor, the suspension will be immediately lifted.
(d) During the review period, interest, penalties, and administrative costs will continue to accrue.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54131, Oct. 26, 2001]
204.7 — Hearing.
(a) A debtor will be provided a reasonable opportunity for an oral hearing by the Commission's designee when:
(1) (i) By statute, consideration must be given to a request to waive the indebtedness;
(ii) The debtor requests waiver of the indebtedness; and
(iii) The waiver determination rests on an issue of credibility or veracity; or
(2) The debtor requests reconsideration and the Commission's designee determines that the question of indebtedness cannot be resolved by reviewing the documentary evidence.
(b) In cases where an oral hearing is provided to the debtor, the Commission's designee will conduct the hearing, and provide the debtor with a written decision 30 days after the hearing.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54131, Oct. 26, 2001]
204.8 — Written agreement for repayment.
If the debtor requests a repayment agreement in place of offset, the Commission has discretion to determine whether to accept a repayment agreement in place of offset. If the debt is delinquent and the debtor has not disputed its existence or amount, the Commission will not accept a repayment agreement in place of offset unless the debtor is able to establish that offset would cause undue financial hardship or be unjust. No repayment arrangement will be considered unless the debtor submits a financial statement, executed under penalty of perjury, reflecting the debtor's assets, liabilities, income, and expenses. The financial statement must be submitted within ten business days of the Commission's request for the statement. At the Commission's option, a confess-judgment note or bond of indemnity with surety may be required for installment agreements. Notwithstanding the provisions of this section, any reduction or compromise of a claim will be governed by the Debt Collection Act, 31 U.S.C. 3711-3720E, and the Federal Claims Collection Standards, 31 CFR 900.1-904.4.
[ 58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54131, Oct. 26, 2001]
204.9 — Administrative offset procedures.
(a) If the debtor does not exercise the right to request a review within the time specified in § 204.4, or if as a result of the review, it is determined that the debt is due and no written agreement is executed, then administrative offset shall be ordered in accordance with this subpart without further notice.
(b) Travel advance. The Commission will deduct outstanding advances provided to Commission travelers from other amounts owed the traveler by the agency whenever possible and practicable. Monies owed by an employee for outstanding travel advances that cannot be deducted from other travel amounts due that employee will be collected through salary offset as described in subpart B of this part.
(c) Requests for offset to the Department of the Treasury or other Federal agencies. The Chairperson (or his or her designee) may notify the Department of the Treasury of delinquent debts for purposes of administrative offset, and may request that a debt owed to the Commission be administratively offset against funds due and payable to a debtor by another Federal agency. In requesting administrative offset, the Commission, as creditor, will certify in writing to the Federal agency holding funds of the debtor that:
(1) The debtor owes the past due and legally enforceable debt; and
(2) The debtor has been afforded the necessary due process rights.
(d) Requests for offset from other Federal agencies. Any Federal agency may request that funds due and payable to its debtor by the Commission be administratively offset in order to collect a debt owed to such Federal agency by the debtor. The Commission shall initiate the requested offset only upon:
(1) Receipt of written certification from the crecitor agency that:
(i) The debtor owes the past due and legally enforceable debt; and
(ii) The debtor has been afforded the necessary due process rights.
(2) A determination by the Commission that collection by offset against funds payable by the Commission would be in the best interest of the United States as determined by the facts and circumstances of the particular case, and that such offset would not otherwise be contrary to law.
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54131, Oct. 26, 2001]
204.10 — [Reserved]
204.11 — Jeopardy procedure.
The Commission may effect an administrative offset against a payment to be made to the debtor prior to the completion of the procedures required by § 204.4(a) if failure to take the offset would substantially jeopardize the Commission's ability to collect the debt, and the time available before the payment is to be made does not reasonably permit the completion of those procedures. Such prior offset shall be promptly followed by the completion of those procedures. Amounts recovered by offset but later found not to be owed to the Commission shall be promptly refunded. This section applies only to administrative offset pursuant to 31 CFR 901.3(c), and does not apply when debts are referred to the Department of the Treasury for mandatory centralized administrative offset under 31 CFR 901.3(b)(1).
[58 FR 64370, Dec. 7, 1993, as amended at 66 FR 54131, Oct. 26, 2001]