PART 82-FURNISHING RECORDS OF THE GENERAL ACCOUNTING OFFICE IN JUDICIAL PROCEEDINGS

Sec.

82.1 Court subpoenas or requests. 82.2 Fees and charges.

§ 82.1 Court subpoenas or requests.

(a) A subpoena or request from a court for records of the General Accounting Office should be directed to the Comptroller General of the United States and served upon the Records Management and Services Officer, Office of Information Systems and Services.

(b) In honoring a court subpoena or request original records may be presented for examination but must not be presented as evidence or otherwise used in any manner by reason of which they may lose their identity as official records of the General Accounting Office. They must not be

marked or altered, or their value as evidence impaired, destroyed, or otherwise affected. In lieu of the original records, certified copies will be presented for evidentiary purposes since they are admitted in evidence equally with the originals (31 U.S.C. 46).

(Sec. 311, 42 Stat. 25, as amended; 31 U.S.C. 52; sec. 8, 28 Stat. 207, as amended, sec. 117, 64 Stat. 837; 31 U.S.C. 74, 67)

[33 FR 358, Jan. 10, 1968, as amended at 45 FR 84955, Dec. 24, 1980]

§ 82.2 Fees and charges.

The provisions of § 81.7 of this chapter are applicable to this part; however, where the charging of fees is appropriate, they need not be collected in advance.

(Sec. 311, 42 Stat. 25, as amended; 31 U.S.C. 52; sec. 8, 28 Stat. 207, as amended, sec. 117, 64 Stat. 837; 31 U.S.C. 74, 67) [33 FR 358, Jan. 10, 1968]

§ 91.1 Prescription of standards.

These regulations are issued by the Comptroller General of the United States in implementation of section 5584 of title 5, United States Code, as added by Pub. L. 90-616, approved October 21, 1968, as amended by Pub. L. 92-453, approved October 2, 1972, and Pub. L. 93-359, approved July 25, 1974, and also in implementation of new section 2774 added to Title 10, United States Code, and new section 716 added to Title 32, United States Code, by said Pub. L. 92-453. These regulations prescribe standards for waiver of claims of the United States against a person arising out of an erroneous payment of pay or allowances to an employee of an agency and member of the uniformed services, including the National Guard, the collection of which would be against equity and good conscience and not in the best interests of the United States. [40 FR 36099, Aug. 19, 1975]

the

a

(a) "Employee" means an employee as defined in 5 U.S.C. 2105 who is or was employed in a civilian capacity by an agency.

(b) "Agency" means

(1) An executive agency as defined in 5 U.S.C. 105,

(2) The Government Printing Office, (3) The Library of Congress,

(4) The Office of the Architect of the Capitol, and

(5) The Botanic Garden.

(c) "Pay" as it relates to an employee means salary, wages, pay, compensation, emoluments, and remuneration for services. It includes but is not limited to overtime pay; night, Sunday standby, irregular and hazardous duty differential; pay for Sunday and holiday work; payment for accumulated and accrued leave; and severance pay. It does not include travel and transportation expenses and allowances, and relocation allowances payable under 5 U.S.C. 5724a.

(d) "Allowances" as they relate to an employee include but are not limited to payments for quarters, uniforms, and overseas cost of living expenses, but exclude travel and transportation allowances, and relocation expenses payable under 5 U.S.C. 5724a.

(e) "Member" means a member or former member of the uniformed services, or member or former member of the National Guard.

(f) "Uniformed services" means the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration, and

Public Health Service.

(g) "National Guard" means the Army National Guard, the Air National Guard, the Army National Guard of the United States, and Air National Guard of the United States.

(h) The term "Secretary concerned" is that as defined in section 101(5) of Title 37, United States Code.

(i) "Pay" as it relates to members inIcludes but is not limited to base and longevity pay, basic pay, training duty pay, special and incentive pays, readjustment pay, severance pay, mustering-out pay, retainer pay, retired pay, retirement pay, lump sum leave pay, and equivalent pay. It does not include travel or transportation allowances.

(j) "Allowances" as they relate to

• members include but are not limited to payments in lieu of subsistence, quarters, uniforms, clothing, personal money allowance, family separation al

lowance, and overseas station allowance. They do not include travel or transportation allowances.

(k) "Aggregate amount" means gross entitlement due employee or member. [37 FR 26095, Dec. 8, 1972, as amended at 40 FR 36099, Aug. 19, 1975]

§ 91.3 Exclusions.

This part does not apply to:

(a) Employees of the District of Columbia Government.

(b) Employees of the legislative branch of the Government except employees of the Architect of the Capitol, the Government Printing Office, the Library of Congress, the United States Botanic Garden, and the General Accounting Office.

(c) Employees of the Administrative Office of the U.S. Courts, the Federal Judicial Center and other employees of the judicial branch.

[37 FR 26095, Dec. 8, 1972, as amended at 40 FR 36099, Aug. 19, 1975]

§ 91.4 Waiver of claims for erroneous payment of pay and allowances.

(a) The Comptroller General of the United States may waive in whole or in part a claim of the United States in any amount arising out of erroneous payment or pay or allowances, to an employee or member when all of the conditions set out in § 91.5 are present. Claims referred to the Attorney General for litigation will not be considered for waiver by the Comptroller General of the United States without first having obtained permission from the Attorney General.

(b) The head of the agency or the Secretary concerned, as appropriate, may waive in whole or in part a claim of the United States in an amount aggregating not more than $500, without regard to any repayments, against any person arising out of an erroneous payment of pay or allowances to or on behalf of an employee or member when all of the conditions set out in § 91.5 are present, except that he may not waive such a claim which is the subject of an exception made by the Comptroller General in the account of any accountable official, or which has been transmitted to the General Accounting Office for collection or to the

Attorney General for litigation. He may deny an application for waiver of a claim in any amount, provided that in those cases where the claim is in an amount aggregating more than $500 the employee or member must be advised of his right to appeal the denial to the Comptroller General of the United States.

[37 FR 26095, Dec. 8, 1972, as amended at 44 FR 18639, Mar. 29, 1979]

§ 91.5 Conditions for waiver of claims.

Claims of the United States arising out of an erroneous payment of pay or allowances may be waived in whole or in part in accordance with the provisions of § 91.4 whenever:

(a) The claim arises out of an erroneous payment of pay and allowances made to or in behalf of an employee on or after July 1, 1960, except that waiver action may not be taken (1) unless application is received either in the General Accounting Office or agency concerned within 3 years immediately following the date on which the erroneous payment of pay was discovered, or within 3 years after October 21, 1968, whichever is later, or (2) unless application is received either in the General Accounting Office or agency concerned within 3 years immediately following the date on which the erroneous payment of allowances was discovered, or October 2, 1975, whichever is later, or (3) in the case of employees of the Government Printing Office, the Library of Congress, the Office of the Architect of the Capitol, or the Botanic Garden unless application is received either in the General Accounting Office or in the office of the head of the agency concerned within 3 years immediately following the date on which the erroneous payment of pay or allowances was discovered or July 25, 1977, whichever is later.

(b) The claim arises out of an erroneous payment of pay or allowances made to or in behalf of a member except that waiver action may not be taken unless application is received either in the General Accounting Office or the office of the Secretary concerned within 3 years immediately following the date on which the erro

neous payment of pay or allowances was discovered.

(c) Collection action under the claim would be against equity and good conscience and not in the best interests of the United States. Generally these criteria will be met by a finding that the erroneous payment of pay or allowances occurred through administrative error and that there is no indication of fraud, misrepresentation, fault or lack of good faith on the part of the employee or member or any other person having an interest in obtaining a waiver of the claim. Any significant unexplained increase in pay or allowances which would require a reasonable person to make inquiry concerning the correctness of his pay or allowances, ordinarily would preclude a waiver when the employee or member fails to bring the matter to the attention of appropriate officials. Waiver of overpayments of pay and allowances under this standard necessarily must depend upon the facts existing in the particular case. The facts upon which a waiver is based should be recorded in detail and made a part of the written record in accordance with the provisions of § 92.6 of this subchapter.

[37 FR 26095, Dec. 8, 1972, as amended at 40 FR 36099, Aug. 19, 1975]

§ 92.2 Investigation-Report of investigation.

(a) Except as provided in paragraph (c) of this section, all claims of the United States considered for waiver shall be investigated by the agency which made the erroneous payment of pay or allowances.

(b) The report of investigation will be made to the head of the agency or the Secretary concerned and should include:

(1) A statement of the aggregate amount of the erroneous payment supported by a citation to the pay record or voucher or vouchers upon which the erroneous payment was made together with a showing as to the part of the erroneous payment made on each pay record or voucher.

(2) A statement showing the circumstances under which the erroneous payment was made, the date it was discovered and whether it was subject to an exception made by the Comptroller General of the United States.

(3) A statement as to whether there is any indication of fraud, misrepresentation fault, or lack of good faith on the part of the employee or member or any other person having an interest in obtaining a waiver of the claim.

(4) A statement by the employee or member as to his knowledge of the overpayment.

(5) Any other factual information in possession of the agency such as payroll change slips, personnel action

forms, leave and earnings statements, indoctrination or other instruction indicating knowledge on the part of the employee or member concerning the possibility of having received an erroneous payment of pay or allowances.

(c) An investigation will not be required in those cases of overpayment of pay or allowances involving amounts of $25 or less where there is no indication in the record of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim.

[37 FR 26096, Dec. 8, 1972, as amended at 40 FR 36099, Aug. 19, 1975]

§ 92.3 Procedure of head of agency or Secretary concerned after receiving report of investigation.

After the head of the executive agency or Secretary concerned receives the report of investigation made in accordance with the provisions of § 92.2 he shall:

(a) Determine the reason for the erroneous payment of pay and allowances, take such corrective action as may be required to prevent similar erroneous payments, and make a written report thereof (see § 92.6).

(b) Waive the claim of the United States in whole or in part without regard to any repayment, if it is in an amount aggregating not more than $500, and he determines that waiver would be proper, and record the date and reasons for the waiver, unless the claim has been referred to the Comptroller General for collection or the Attorney General for litigation in which case the report of investigation together with his recommendation will be referred to the Comptroller General of the United States. He may deny an application for waiver of a claim in any amount, provided that in those cases where the claim is in an amount aggregating more than $500 the employee or member must be advised of his right to appeal the denial to the Comptroller General of the United States.

(c) Refer the report of investigation to the Comptroller General of the United States for determination if he recommends waiver and the claim is in

§ 92.4 Notification of waiver action.

The Comptroller General of the United States or the head of the agency or the Secretary concerned, as the case may be, to the extent practicable, shall send written notification to all concerned as to the final action taken upon a claim of the United States for erroneous payment of pay and allowances considered for waiver. If he reasonably can be located, any person who has repaid to the United States all or part of a claim which has been waived in whole or in part and who has not previously made application for refund, in addition to being informed as to the waiver action shall also be informed of his right to make application to the employing agency or department concerned at the time of erroneous refund payment for within 2 years following the date of the waiver action.

[37 FR 26096, Dec. 8, 1972, as amended at 40 FR 36099, Aug. 19, 1975]

§ 92.5 Refund of amounts repaid and waived.

The employing agency or department concerned at the time of the erroneous payment shall refund any amounts to a person who has repaid to the United States all or part, as appropriate, of the claim which has been waived in whole or in part, to the extent waived, provided application is made to the employing agency or department concerned for the refund within 2 years following the date of the waiver. Refunds shall be charged to the appropriation from which the erroneous payment was made.

§ 92.6 Written record.

The report of investigation, a detailed account of the corrective action taken, an account of the waiver action

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