support his or her position. If the employee objects to the percentage of disposable pay to be deducted from each check, the petition should state the objection and the reasons for it. (c) If the employee files a petition for hearing later than the 30 calendar days as described in paragraph (a) of this section, the hearing officer may accept the request if the employee can show that the delay was because of circumstances beyond his or her control or because of failure to receive notice of the filing deadline (unless the employee has actual notice of the filing deadline). §3.57 Result if employee fails to meet deadlines. An employee will not granted a hearing and will have his or her disposable pay offset in accordance with the Secretary's offset schedule if the ployee: em (a) Fails to file a petition for a hearing as prescribed in §3.56; or (b) Is scheduled to appear and fails to appear at the hearing. §3.58 Hearings. (a) If an employee timely files a petition for a hearing under §3.56, the Secretary shall select the time, date, and location for the hearing. (b)(1) Hearings shall be conducted by an appropriately designated hearing official; and (2) Rules of evidence shall not be adhered to, but the hearing official shall consider all evidence that he or she determines to be relevant to the debt that is the subject of the hearing and weigh it accordingly, given all of the facts and circumstances surrounding the debt. (c) USDA will have the burden of going forward to prove the existence of the the debt. (d) The employee requesting the hearing shall bear the ultimate burden of proof. (e) The evidence presented by the employee must prove that no debt exists or cast sufficient doubt such that reasonable minds could differ as to the existence of the debt. §3.59 Written decision following a hearing. Written decisions provided after a hearing will include: (a) A statement of the facts presented at the hearing to support the nature and origin of the alleged debt and those presented to refute the debt; (b) The hearing officer's analysis, findings and conclusions, considering all of the evidence presented and the respective burdens of the parties, in light of the hearing; (c) The amount and validity of the alledged debt determined as a result of the hearing; and (d) There payment schedule (including percentage of disposable pay), if applicable. (e) The determination of the amount of the debt at this hearing is the final agency action on this matter. §3.60 Review of Departmental record related to the debt. (a) Notification by employee. An employee who intends to inspect or copy Departmental records related to the debt must send a letter to the Secretary stating his or her intention. The letter must be received by the Secretary within 30 calendar days of the date of the Notice of Intent. (b) Secretary's response. In response to the timely notice submitted by the debtor as described in paragraph (a) of this section, the Secretary will notify the employee of the location and time when the employee may inspect and copy Departmental records related to the debt. §3.61 Written agreement to repay debt as alternative to salary offset. (a) Notification by employee. The employee may propose, in response to a Notice of Intent, a written agreement to repay the debt as an alternative to salary offset. Any employee who wishes to do this must submit a proposed written agreement to repay the debt which is received by the Secretary within 30 calendar days of the date of the Notice of Intent. (b) Secretary's response. The Secretary will notify the employee whether the employee's prosposed written agreement for repayment is acceptable. The Secretary may accept a repayment agreement instead of proceeding by offset. In making this determination, the Secretary will balance the Department's interest in collecting the debt against hardship to the employee. If the debt is delinquent and the employee has not disputed its existence or amount, the Secretary will accept a repayment agreement, instead of offset, for good cause such as, if the employee is able to establish that offset would result in undue financial hardship or would be against equity and good conscience. $3.62 Procedures for salary offset: when deductions may begin. (a) Deductions to liquidate an employee's debt will be by the method and in the amount stated in the Secretary's Notice of Intent to collect from the employee's current pay. (b) If the employee filed a petition for a hearing with the Secretary before the expiration of the period provided for in §3.56 then deductions will begin after the hearing officer has provided the employee with a hearing, and a final written decision has been rendered in favor of the Secretary. (c) If an employee retires or resigns before collection of the amount of the indebtedness is completed, the remaining indebtedness will be collected according to the procedures for administrative offset (see subpart B of this part). $3.63 Procedures for salary offset: types of collection. A debt will be collected in a lumpsum or in installments. Collection will be by lump-sum collection unless the employee is financially unable to pay in one lump-sum, or if the amount of the debt exceeds 15 percent of disposable pay for an ordinary pay period. In these cases, deduction will be by installments, as set forth in §3.64. $3.64 Procedures for salary offset: methods of collection. (a) General. A debt will be collected by deductions at officially-established pay intervals from an employee's current pay account, unless the employee and the Secretary agree to alternative arrangements for repayment §3.61. under (b) Installment deductions. Installment deductions will be made over a period not greater than the anticipated period of employment. The size and frequency of installment deductions will bear a reasonable relation to the size of the debt and the employee's ability to pay. However, the amount deducted for any period will not exceed 15 percent of the disposable pay from which the deduction is made, unless the employee has agreed in writing to the deduction of a greater amount. If possible, the installment payment will be sufficient in size and frequency to liquidate the debt in no more than three years. Installment payments of less than $25 per pay period or $50 a month will be accepted only in the most unusual circumstances. (c) Sources of deductions. The Department will make deductions only from basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay. §3.65 Procedures for salary offset: imposition of interest, penalties and administrative costs. Interest, penalties and administrative costs will be charged in accordance with 4 CFR 102.13. §3.66 Nonwaiver of rights. So long as there are no statutory or contractual provisions to the contrary, no employee payment (or all or portion of a debt) collected under these regulations will be interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514. §3.67 Refunds. The Department will refund promptly to the appropriate individual amounts offset under these regulations when: (a) A debt is waived or otherwise found not owing the United States (unless expressly prohibited by statute or regulation); or (b) The Department is directed by an administrative or judicial order to refund deducted from the employee's current pay. §3.68 Agency regulations. The Head of each USDA agency is delegated the authority to act for the Secretary under these regulations and may issue regulations or policies not inconsistent with Office of Personnel Management regulations (5 CFR part 550, subpart K) and regulations in this subpart governing the collection of a debt by salary offset. Subpart D-Cooperation with the Internal Revenue Service AUTHORITY: 26 U.S.C. 61, 31 U.S.C. 3720A, I TFRM 4055.50. §3.81 Reporting discharged debts to the Internal Revenue Service. When the Department discharges a debt for less than the full value of the indebtedness it will report the outstanding balance discharged, not including interest, to the Internal Revenue Service, using IRS Form 1099-G or any other form prescribed by the Service, when: (a) The principal amount of the debt not in dispute is $600 or more; and (b) The obligation has not been discharged in a bankruptcy proceeding; and (c) The obligation is no longer collectible either because the time limit in the applicable statute for enforcing collection expired during the tax year, or because during the year a formal compromise agreement was reached in which the debtor was legally discharged of all or a portion of the obligation. [50 FR 7726, Feb. 26, 1985] §3.82 Offset against tax refunds. The Department will take action to effect administrative offset against tax refunds due to debtors under 26 U.S.C. 6402, in accordance with the provisions of 31 U.S.C. 3720A and Treasury Department regulations. [50 FR 7726, Feb. 26, 1985] 5.2 Marketing season average price data. 5.3 Selection of calendar year price data. 5.4 Commodities for which parity prices shall be calculated. 5.5 Publication of season average, calendar year, and parity price data. 5.6 Revision of the parity price of a commodity. AUTHORITY: Secs. 375 and 301, 52 Stat. 66, 38; 7 U.S.C. 1375, 1301. $5.1 Parity index and index of prices received by farmers. (a) The parity index and related indices for the purpose of calculating parity prices after May 1, 1976, according to the formula contained in section 301(a) of the Agricultural Adjustment Act of 1938, as amended by the Agricultural Acts of 1948, 1949, 1954, and 1956 (hereinafter referred to as section 301(a)) shall be the index of prices paid by farmers, interest, taxes, and farm wage rates, as revised May 1976 and published in the May 28, 1976, and subsequent issues of the monthly report, "Agricultural Prices." The publication of these indices by the Statistical Reporting Service in the monthly report, "Agricultural Prices", shall be contin ued. (b) The measure of the general level of prices received by farmers as provided for in section 301(a)(1)(B)(ii) after January 1, 1959, shall be the index of prices received by farmers as revised January 1959 and published in the January 30, 1959, and subsequent issues of "Agricultural Prices". The simple average of the 120 monthly indices included in the preceding 10 calendar years plus an adjustment to take account of the effect on the index of any adjustment made on average prices of individual commodities as hereinafter specified shall be used in the calculation of the adjusted base prices. Parity prices heretofore published for periods prior to January 1, 1959 shall not be revised. (c) The term milkfat as used in these regulations is synonymous with the term butterfat, and when any statute requires calculation of the parity price of butterfat, the parity price of milkfat shall be the parity price of butterfat. [24 FR 697, Jan. 31, 1959, as amended by Amdt. 6, 24 FR 9778, Dec. 5, 1959; Amdt. 29, 41 FR 22333, June 3, 1976] $5.2 Marketing season average price data. It is hereby found that it is impractical to use averages of prices received by farmers on a calendar year basis for the following agricultural commodities for the purpose of calculating adjusted base prices and, therefore, marketing season average prices will be used. An allowance for any supplemental payment resulting from price support operations shall be included in the determination of the adjusted base prices. For cigar binder tobacco, types 51-52, for each of the marketing seasons beginning in the years 1949 through 1958, 37.9 cents per pound shall be used in lieu of the average of prices received by farmers for such tobacco during each such marketing season. BASIC COMMODITIES Extra long staple cotton; peanuts; rice, and the following types of tobacco: Flue-cured, types 11-14; Virginia fire-cured, type 21; Kentucky-Tennessee fire-cured, types 22-23; burley, type 31; dark air-cured, types 35-36; suncured, type 37; Pennsylvania seedleaf, type 41; cigar filler and binder, types 42-44 and 5355; Puerto Rican filler, type 46 (price refers to year of harvest); and cigar binder, types 51-52. DESIGNATED NONBASIC COMMODITIES Tung nuts; honey, wholesale extracted. WOOL AND MOHAIR Wool and mohair (including payments made under terms of $704 of the National Wool Act of 1954). OTHER NONBASIC COMMODITIES CITRUS FRUIT Grapefruit; lemons; limes; oranges; tangerines; and Temples. DECIDUOUS AND OTHER FRUIT Apples for processing; apricots for fresh consumption; apricots for processing (except dried); dried apricots; avocados; blackberries; boysenberries; gooseberries; loganberries; black raspberries; red raspberries; youngberries; tart cherries; sweet cherries; cranberries; dates; grapes, raisins, dried; all grapes excluding raisins, dried; nectarines for fresh consumption, nectarines for processing; olives for processing (except crushed for oil); olives, crushed for oil; olives for canning; papayas (Hawaii), for fresh consumption; peaches for fresh consumption; clingstone peaches for processing (except dried); freestone peaches for processing (except dried); dried peaches; pears for fresh consumption; pears for processing (except dried); dried pears; plums (California), for fresh consumption; plus (California), for processing; dried prunes (California); prunes and plums (excluding California), for processing (except dried); strawberries for fresh consumption; and strawberries for process ing. SEED CROPS Alfalfa, bentgrass, crimson clover, Chewings fescue, red fescue, tall fescue, Marion Kentucky bluegrass, Ladino clover, lespedeza, orchard grass, red clover, timothy, and hairy vetch. SUGAR CROPS Sugar beets (including conditional payment under the Sugar Act), sugarcane for sugar (including conditional payment under the Sugar Act). TREE NUTS Almonds; filberts; pecans, all; and walnuts. VEGETABLES FOR FRESH MARKET Artichokes, asparagus, snap beans, broccoli, cabbage, cantaloupe, carrots, cauliflower, celery, sweet corn, cucumbers, eggplant, escarole, garlic, honeydew melons, lettuce, onions, green peppers, spinach, tomatoes, and watermelons. VEGETABLES FOR PROCESSING Asparagus, lima beans, snap beans, beets, cabbage, sweet corn, cucumbers, green peas, spinach, and tomatoes. OTHER COMMODITIES Beeswax; cottonseed; hops; peas; dry field; peppermint oil; popcorn; potatoes; spearmint oil; and tobacco, types 61-62. All other commodities for which monthly price data are not available. [21 FR 761, Feb. 3, 1956] EDITORIAL NOTE: For FEDERAL REGISTER Citations affecting §5.2 see the List of CFR 157-007 0-95-10 Sections Affected in the Finding Aids section of this volume. $5.3 Selection of calendar year price data. In computing the adjusted base price for those commodities for which calendar year price data are used, “*** the average of the prices received by farmers for such commodity, at such times as the Secretary may select during each year ***," as used in section 301(a)(1)(B)(i), shall be the simple average of the 12 monthly estimates of the prices received by farmers as published by the Statistical Reporting Service in "Agricultural Prices" for those commodities for which such prices are available. An allowance for unredeemed loans and purchase agreement deliveries, any supplemental payments resulting from price support operations, and the value of marketing certificates, such as those received by producers of wheat pursuant to the Agricultural Adjustment Act of 1938, as amended, and others of generally similar character and effect, shall be added to the price specified above. Prices received for milk wholesale, milkfat, beef cattle, sheep, and lambs shall include wartime subsidy payments as provided by section 301(a)(1)(B). For Maryland Tobacco, type 32, the price data for each calendar year shall be the weighted average price of type 32 tobacco sold during the period January 1-December 31. [Amdt. 14, 29 FR 12451, Sept. 1, 1964] 85.4 Commodities for which parity prices shall be calculated. Parity prices shall be calculated for the following commodities: BASIC COMMODITIES Wheat; corn; American upland cotton; extra long staple cotton; rice; peanuts;1 and the following types of tobacco: flue-cured, types 11-14; Virginia fire-cured, type 21; Kentucky-Tennessee fire-cured, types 22-23; burley, type 31; Maryland, type 32; dark aircured, types 35-36; sun-cured, type 37; Penn 1 For the purpose of calculating parity prices the commodity peanuts shall exclude peanuts produced for oil in 1950 and 1951 under the provisions of subsections (g) and (h) of section 359 of the Agricultural Adjustment Act of 1938 as amended. sylvania seedleaf, type 41; cigar filler and binder, types 42-44 and 53-55; Puerto Rican filler, type 46; and cigar binder, types 51-52. DESIGNATED NONBASIC COMMODITIES Milk sold to plants; milkfat in cream; tung nuts; honey, wholesale extracted. WOOL AND MOHAIR Wool and mohair. OTHER NONBASIC COMMODITIES CITRUS FRUIT Grapefruit; lemons; limes; oranges; tangerines; and Temples. DECIDUOUS AND OTHER FRUIT Apples (primarily for fresh use); apples for processing; apricots for fresh consumption; apricots for processing (except dried); dried apricots; avocados; blackberries; boysenberries; gooseberries; loganberries; black raspberries; red raspberries; youngberries; tart cherries; sweet cherries; cranberries; dates; grapes, raisins, dried; all grapes, excluding raisins, dried; nectarines for fresh consumption; nectarines for processing; olives for processing (excluding crushed for oil); olives, crushed for oil; olives for canning; papayas (Hawaii), for fresh consumption; peaches for fresh consumption; clingstone peaches for processing (except dried); freestone peaches for processing (except dried); dried peaches; pears for fresh consumption; pears for processing (except dried); dried pears; plums (California), for fresh consumption; plums (California), for processing; dried prunes (California); prunes and plums (excluding California), for processing (except dried); strawberries for fresh consumption; and strawberries for process ing. SEED CROPS Alfalfa, bentgrass, crimson clover, Chewings fescue, red fescue, tall fescue, Marion Kentucky bluegrass, Ladino clover, lespedeza, orchard grass, red clover, timothy, and hairy vetch. SUGAR CROPS Sugar beets, and sugarcane for sugar. TREE NUTS Almonds; filberts; pecans, all; and walnuts. VEGETABLES FOR FRESH MARKET Artichokes, asparagus, snap beans, broccoli, cabbage, cantaloups, carrots, cauliflower, celery, sweet corn, cucumbers, eggplant, escarole, garlic, honeydew melons, lettuce, onions, green peppers, spinach, tomatoes, and watermelons. |