[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)