[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR31.7]



[Page 63-64]

 

                           TITLE 34--EDUCATION

 

PART 31_SALARY OFFSET FOR FEDERAL EMPLOYEES WHO ARE INDEBTED TO THE 

 

Sec. 31.7  Hearing procedures.



    (a) Independence of hearing official. A hearing provided under this 

part is conducted by a hearing official who is neither an employee of 

the Department nor otherwise under the supervision or control of the 

Secretary.

    (b) Lack of subpoena authority or formal discovery. (1) Neither the 

hearing official nor the Secretary has authority to issue subpoenas to 

compel the production of documents or to compel the attendance of 

witnesses at an oral hearing under this part. The Secretary will attempt 

to make available during an oral hearing the testimony of a current 

official of the Department if--

    (i) The employee had identified the official in the request for a 

hearing under Sec. 31.5(b) and demonstrated that the testimony of the 

official is necessary to resolve adequately an issue of fact raised by 

the employee in the request for a hearing; and

    (ii) The Secretary determines that the responsibilities of the 

official permit his or her attendance at the hearing.

    (2) If the Secretary determines that the testimony of a Department 

official is necessary, but that the official cannot attend an oral 

hearing to testify, the Secretary attempts to make the official 

available for testimony at the hearing by means of a telephone 

conference call.

    (3) No discovery is available in a proceeding under this part except 

as provided in Sec. 31.4.

    (c) Hearing on written submissions. If a hearing is conducted on the 

written submissions, the hearing official reviews documents and 

responses submitted by the Secretary and the employee under Sec. 31.5.

    (d) Conduct of oral hearing. (1) The hearing official conducts an 

oral hearing as an informal proceeding. The official--

    (i) Administers oaths to witnesses;

    (ii) Regulates the course of the hearing;

    (iii) Considers the introduction of evidence without regard to the 

rules of evidence applicable to judicial proceedings; and

    (iv) May exclude evidence that is redundant, or that is not relevant 

to those issues raised by the employee in the request for hearing under 

Sec. 31.5 that remain in dispute.

    (2) An oral hearing is generally open to the public. However, the 

hearing official may close all or any portion of the hearing if doing so 

is in the best interest of the employee or the public.

    (3) The hearing official may conduct an oral hearing by telephone 

conference call--

    (i) If the employee is located in a city outside the Washington, DC 

Metropolitan area.

    (ii) At the request of the employee.

    (iii) At the discretion of the hearing official.

    (4) No written record is created or maintained of an oral hearing 

provided under this part.

    (e) Burden of proof. In any hearing under this part--



[[Page 64]]



    (1) The Secretary bears the burden of proving, by a preponderance of 

the evidence, the existence and amount of the debt, and the failure of 

the employee to repay the debt, as the debt is described in the pre-

offset notice provided under Sec. 31.3; and

    (2) The employee bears the burden of proving, by a preponderance of 

the evidence--

    (i) The existence of any fact that would establish that the debt 

described in the pre-offset notice is not enforceable by offset; and

    (ii) The existence of any fact that would establish that the amount 

of the proposed offset would cause an extreme financial hardship for the 

employee.



(Authority: 5 U.S.C. 5514; 31 U.S.C. 3716)