55162 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

feed efficiency and increased egg

production.

The data submitted in support of this

hybrid ANADA satisfy the requirements

of section 512(b)(1) and (b)(2) of the

Federal Food, Drug, and Cosmetic Act

(the act) (21 U.S.C. 360b(b)(1) and (b)(2))

and the regulations in 21 CFR part 514.

The hybrid ANADA has been defined in

the Center’s Seventh Generic Animal

Drug Policy letter dated March 20, 1991.

The hybrid ANADA relies on the

approval of a listed (pioneer) animal

drug and contains additional data

needed to support the change in the

generic product. The hybrid ANADA is

thus relying on the approval of the

listed animal drug to the extent that

such reliance is allowed under section

512(n) of the act, to establish the safety

and effectiveness of the underlying

animal drug. An application that relies

in part on the approval of a listed

animal drug for this purpose is

considered an application described in

section 512(b)(2) of the act.

ALPHARMA, Inc.’s, hybrid ANADA

200–223 for bacitracin zinc is approved

as a generic copy of HoffmannLaRoche’s NADA 46–920. The hybrid

ANADA is approved as of August 20,

1997, and the regulations are amended

in 21 CFR 558.78 by revising paragraph

(a)(1) to indicate additional approvals

and in paragraph (d)(1) by removing the

footnote to the table to reflect the

approval. The basis of approval is

discussed in the freedom of information

summary.

In accordance with the freedom of

information provisions of 21 CFR part

20 and 514.11(e)(2)(ii), a summary of

safety and effectiveness data and

information submitted to support

approval of this application may be seen

in the Dockets Management Branch

(HFA–305), Food and Drug

Administration, 12420 Parklawn Dr.,

rm. 1–23, Rockville, MD 20857, between

9 a.m. and 4 p.m., Monday through

Friday.

The agency has determined under 21

CFR 25.33(a)(1) that this action is of a

type that does not individually or

cumulatively have a significant effect on

the human environment. Therefore,

neither an environmental assessment

nor an environmental impact statement

is required.

List of Subjects in 21 CFR Part 558

Animal drugs, Animal feeds.

Therefore, under the Federal Food,

Drug, and Cosmetic Act and under

authority delegated to the Commissioner

of Food and Drugs and redelegated to

the Center for Veterinary Medicine, 21

CFR part 558 is amended as follows:

PART 558—NEW ANIMAL DRUGS FOR

USE IN ANIMAL FEEDS

1. The authority citation for 21 CFR

part 558 continues to read as follows:

Authority: 21 U.S.C. 360b, 371.

2. Section 558.78 is amended by

revising paragraph (a), and in paragraph

(d)(1) by removing the footnote to the

table to read as follows:

§ 558.78 Bacitracin zinc.

(a) Approvals. To sponsors listed in

§ 510.600(c) of this chapter for use as in

paragraph (d) of this section as follows:

(1) To 046573: 50 grams per pound as

in paragraphs (d)(1)(i), (d)(1)(ii),

(d)(1)(iii), (d)(1)(iv), and (d)(2) of this

section.

(2) To 000004: 10, 25, 40, and 50

grams per pound as in paragraphs

(d)(1)(i), (d)(1)(ii), (d)(1)(v), (d)(1)(vi),

(d)(2), and (d)(3) of this section.

(3) To 000010: 5 and 50 grams per

pound as in paragraph (d)(1)(i) of this

section.

* * * * *

Dated: September 19, 1997.

Stephen F. Sundlof,

Director, Center for Veterinary Medicine.

[FR Doc. 97–28015 Filed 10–22–97; 8:45 am]

BILLING CODE 4160–01–F

NATIONAL LABOR RELATIONS

BOARD

29 CFR Part 102

Procedural Rules Governing DebtCollection Procedures for

Administrative Offset and Federal

Income Tax Refund Offset

AGENCY: National Labor Relations

Board.

ACTION: Final rule.

SUMMARY: The Debt Collection Act of

1982 (Pub. L. 97–365) amended the

Federal Claims Collection Act of 1966 to

authorize the federal government to

employ various debt collection

techniques commonly available to the

private sector, including administrative

offset and Federal income tax refund

offset. In 1992 the Congress passed and

the President signed into law the Cash

Management Improvement Act

Amendments of 1992 which requires

federal agencies to participate in the

Internal Revenue Service (IRS) income

tax refund offset program for the

collection of delinquent debts by offset

from a federal income tax refund that

may be due the delinquent debtor. This

final rule establishes the procedures

which the Board will follow in utilizing

the debt collection procedures

authorized by the above legislation.

EFFECTIVE DATE: October 23, 1997.

FOR FURTHER INFORMATION CONTACT: John

J. Toner, Executive Secretary, National

Labor Relations Board, 1099 14th Street,

NW, Room 11600, Washington, DC

20570. Telephone: (202) 273–1940.

SUPPLEMENTARY INFORMATION: The Debt

Collection Act of 1982 (Pub. L. 97–365)

amended the Federal Claims Collection

Act of 1966 to authorize the Federal

Government to employ various debt

collection techniques commonly

available to the private sector, including

administrative offset and Federal

income tax refund offset. In 1992 the

Congress passed and the President

signed into law the Cash Management

Improvement Act Amendments of 1992

which requires federal agencies to

participate in the Internal Revenue

Service (IRS) income tax refund offset

program in which federal agencies refer

delinquent debt to the IRS for collection

by offset from a federal income tax

refund that may be due the delinquent

debtor. On July 24, 1996, the National

Labor Relations Board (Board)

implemented interim regulations, set

forth as new Subparts U (administrative

offset), and V (Federal income tax

refund offset), to part 102 of the Board’s

Rules and Regulations, Series 8,

(published at 61 FR 38371 and 61 FR

38373, respectively), to enable the Board

to utilize these debt collection

procedures that have proven to be cost

effective mechanisms for collection of

delinquent debt.

These final rules establish the current

interim rules as the means by which the

Board will pursue debt collection

permitted under the above statutes, with

one minor change involving the

clarification of a phrase appearing in

§ 102.160 of Subpart U, as discussed

below.

When the Board published the

interim rules on July 24, 1996, it

determined that, because these rules

merely implement a definite statutory

scheme and its concomitant regulations,

and relate to Agency procedure and

practice, public comment on the rules

was unnecessary. Nevertheless, the

Board undertook to consider any public

comments submitted to it on or before

September 29, 1996, before issuing any

final rules. The Board did receive

comments from one organization which

raised questions falling broadly within

two categories: (1) Whether the

regulations were needed, and (2)

whether the application of the

regulations was appropriate. We

consider these comments seriatim.
Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations 55163

Questions Regarding the Need for the

Regulations

The organization questioned why

these procedures are necessary and

being implemented now, and why they

single out federal contractors. In brief,

the regulations regarding administrative

offset procedures implement a statutory

scheme that specifically addresses

collections of delinquent debt from

federal contractors, a decision made in

the enabling legislation, not by the

Board in these regulations. Moreover,

while these procedures doubtless could

have been implemented earlier, that is

no reason not to implement them now

that the Board has become aware of

their utility. As Justice Frankfurter once

observed in a different context:

‘‘Wisdom too often never comes, and so

one ought not to reject it merely because

it comes late.’’ Henslee v. Union

Planters Bank, 335 U.S. 595, 600 (1949)

(dissenting opinion).

The organization questioned whether

the Board would be required to follow

the provisions of Executive Order 12866

before implementing these regulations,

specifically, the principles of regulation

set forth in Section 1(b) of that

Executive Order. However, independent

regulatory agencies are specifically

excluded from coverage of Section 1.

Further, even assuming the NLRB is

covered by Section 1, these regulations

are consistent with the regulatory

principles set forth in that section since

they implement a statutory scheme

already found desirable by Congress.

The organization inquired whether

the Board had given any consideration

to how the new regulations will benefit

the Board. As noted in the

Supplementary Information section

accompanying publication of the

interim rules, 61 FR 38368, the Board is

entitled to utilize these offset provisions

because debts owed pursuant to Board

orders are in fact debts owed to the

United States, the Board being the

public agent chosen by Congress to

vindicate the public policies embodied

in the National Labor Relations Act.

Finally, the organization expressed

the opinion that, before these

regulations could be put into effect, the

Federal Acquisition Regulations and

Defense Acquisition Regulations should

be amended. However, amending these

regulations is not something within the

purview of the Board and, therefore, no

reason not to proceed with appropriate

debt collection methods that have been

entrusted to the Board.

Questions Regarding the Application of

the Regulations

The organization notes that the

regulations provide that the Agency

‘‘may give due consideration to the

debtor’s financial condition * * *,’’

§ 102.160(c), and questions whether this

consideration should be mandated.

Specifically, the organization proposes

that, at a minimum, the regulations

mandate consideration of a debtor’s

financial condition, mandate that the

negative impact on the debtor be

minimized, and require notification to

the debtor to solicit information on its

financial viability if offset should occur.

In fact, the regulations already

provide that the Agency ‘‘shall send

written notice to the debtor,’’

§ 102.161(b), and that this notice shall

notify the debtor of the ‘‘opportunity to

enter into a written agreement with the

Agency to repay the debt.’’

§ 102.161(b)(7). Moreover, the ‘‘Agency

shall afford the debtor the opportunity

to repay the debt or enter into a

repayment plan which is agreeable to

the Agency * * *.’’ § 102.163(a).

These mandatory provisions provide

more than ample opportunity for the

debtor to raise, and the Agency to

consider, the debtor’s financial

condition, as well as the impact of any

administrative offset, prior to initiating

an administrative offset. Providing

further mandates with respect to the

Agency’s obligation to consider the

debtor’s financial condition could mire

the Agency in disputes with the debtor

over whether a particular repayment

plan is adequate, thereby risking

nonfulfillment of the Agency’s

responsibility to vindicate the policies

embodied in the National Labor

Relations Act.

The organization questioned whether

the regulations should address more

specifically when administrative offset

will be used. However, the head of the

Agency already is required by 31 U.S.C.

3711 to attempt to collect delinquent

claims, and our regulations specifically

provide that ‘‘Administrative offset shall

be considered by the Agency only after

attempting to collect a claim under 31

U.S.C. 3711(a).’’ § 102.160(d). Finally, a

claim ‘‘will not be referred for tax

refund offset where administrative offset

potential is found to exist.’’ § 102.173(c).

The organization argues that the

regulations should specifically mandate

consideration of the effect of

administrative offset on any third-party

contractors whose work depends on

performance by the debtor. We are not

aware of any requirement that the

Agency take this factor into

consideration. However, as a matter of

sound practice, if such information is

presented to the Board it will, as with

any relevent information, be duly

considered.

The organization objects to the

provision in § 102.164(c) that allows the

Agency to ‘‘effect an administrative

offset * * * prior to the completion of

the due process procedures required by

this subpart, if failure to take the offset

would substantially prejudice the

Agency’s ability to collect the debt.’’

Specifically, the organization proposes

that the rules should specify the

circumstances in which this procedure

is permitted and require identification

of alternative sources of funds which

should be pursued before due process

procedures are suspended. We conclude

that it would be impossible to

enumerate all of the circumstances in

which this procedure might be

triggered. However, by way of example,

it could be triggered if a debtor were

winding down its business, was coming

to the last payment on its last contract,

and if the Agency did not prevent those

funds from being disbursed, it might

never be able to collect the debt. Even

in such situations, however, the debtor

is not without recourse. For, this is akin

to seeking a protective order, a

proceeding in which the debtor will

have recourse to administrative or

judicial review. Thus, although funds

might be temporarily frozen, the debtor

ultimately will receive full due process

before the funds are finally taken.

Finally, the organization questioned

whether the Regulatory Flexibility Act

requires an impact analysis or a

flexibility analysis. However, for the

reasons set forth in the publication of

the interim rules, and again below, we

are persuaded that the Regulatory

Flexibility Act does not apply here.

Notwithstanding all of the foregoing,

the Board has determined that one

minor change in the regulations is

appropriate to clarify the meaning of a

phrase appearing in § 102.160 of

Subpart U. Thus, in § 102.160(c), the

phrase ‘‘an available source of funds’’ is

changed to read ‘‘another readily

available source of funds.’’ In all other

respects, the final rules that the Board

now publishes are the same as the

interim rules presently outstanding.

Executive Order 12866

As noted above, the regulatory review

provisions of Executive Order 12866 do

not apply to independent regulatory

agencies. However, even if they did,

these rules would not be classified as

‘‘significant rules’’ under Section 6 of

Executive Order 12866, because they

will not result in (1) an annual effect on

the economy of $100 million or more;
55164 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

(2) a major increase in costs or prices for

consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions; or (3)

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

enterprises to compete with foreignbased enterprises in domestic or foreign

markets. Accordingly, no regulatory

impact assessment is required.

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required for procedural rules,

the requirements of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.)

pertaining to regulatory flexibility

analysis do not apply to these rules.

However, even if the Regulatory

Flexibility Act were to apply, the NLRB

certifies that these rules will not have a

significant economic impact on a

substantial number of small business

entities as they merely set forth

procedures to be followed by the

Agency in attempting to collect

outstanding debts.

Paperwork Reduction Act

These rules are not subject to Section

3504(h) of the Paperwork Reduction Act

(44 U.S.C. 3501) since they do not

contain any new information collection

requirements.

Small Business Regulatory Enforcement

Fairness Act

Because these rules relate to Agency

procedure and practice and merely

implement a definitive statutory scheme

and the requirements contained in

regulations promulgated by the

Department of Justice, the General

Accounting Office, the Internal Revenue

Service, and the Treasury Department,

the Board has determined that the

Congressional review provisions of the

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 801) do not

apply.

List of Subjects in 29 CFR Part 102

Administrative practice and

procedure, Labor management relations.

To enable the Agency to collect

delinquent debts by way of

administrative offset and Federal

income tax refund offset, the Board

amends 29 CFR part 102 as follows:

PART 102—RULES AND

REGULATIONS, SERIES 8

1. The authority citation for 29 CFR

part 102 continues to read as follows:

Authority: Section 6, National Labor

Relations Act, as amended (29 U.S.C. 151,

156). Section 102.117(c) also issued under

Section 552(a)(4)(A) of the Freedom of

Information Act, as amended (5 U.S.C.

552(a)(4)(A)). Sections 102.143 through

102.155 also issued under Section 504(c)(1)

of the Equal Access to Justice Act, as

amended (5 U.S.C. 504(c)(1)).

2. Subparts U and V to part 102 are

revised to read as follows:

Subpart U—Debt-Collection

Procedures by Administrative Offset

Sec.

102.156 Administrative offset; purpose and

scope.

102.157 Definitions.

102.158 Agency requests for administrative

offsets and cooperation with other

Federal agencies.

102.159 Exclusions.

102.160 Agency responsibilities.

102.161 Notification

102.162 Examination and copying of

records related to the claim; opportunity

for full explanation of the claim.

102.163 Opportunity for repayment.

102.164 Review of the obligation.

102.165 Cost shifting.

102.166 Additional administrative

collection action.

102.167 Prior provision of rights with

respect to debt.

§ 102.156 Administrative offset; purpose

and scope.

The regulations in this subpart specify

the Agency procedures that will be

followed to implement the

administrative offset procedures set

forth in the Debt Collection Act of 1982

(Pub. L. 97–365), 31 U.S.C. 3716.

§ 102.157 Definitions.

(a) The term administrative offset

means the withholding of money

payable by the United States to, or held

by the United States on behalf of, a

person to satisfy a debt owed the United

States by that person.

(b) The term debtor is any person

against whom the Board has a claim.

(c) The term person does not include

any agency of the United States, or any

state or local government.

(d) The terms claim and debt are

synonymous and interchangeable. They

refer to an amount of money or property

which has been determined by an

appropriate Agency official to be owed

to the United States from any person,

organization, or entity, except another

federal agency.

(e) A debt is considered delinquent if

it has not been paid by the date

specified in the Agency’s initial demand

letter (§ 102.161), unless satisfactory

payment arrangements have been made

by that date, or if, at any time thereafter,

the debtor fails to satisfy his obligations

under a payment agreement with the

Agency.

§ 102.158 Agency requests for

administrative offsets and cooperation with

other Federal agencies.

Unless otherwise prohibited by law,

the Agency may request that monies due

and payable to a debtor by another

Federal agency be administratively

offset in order to collect debts owed the

Agency by the debtor. In requesting an

administrative offset, the Agency will

provide the other Federal agency

holding funds of the debtor with written

certification stating:

(a) That the debtor owes the Board a

debt (including the amount of debt); and

(b) That the Agency has complied

with the applicable Federal Claims

Collection Standards, including any

hearing or review.

§ 102.159 Exclusions.

(a) (1) The Agency is not authorized

by the Debt Collection Act of 1982 (31

U.S.C. 3716) to use administrative offset

with respect to:

(i) Debts owed by any State or local

government;

(ii) Debts arising under or payments

made under the Social Security Act, the

Internal Revenue Code of 1954, or the

tariff laws of the United States; or

(iii) When a statute explicitly

provides for or prohibits using

administrative offset to collect the claim

or type of claim involved.

(2) No claim that has been

outstanding for more than 10 years after

the Board’s right to collect the debt first

accrued may be collected by means of

administrative offset, unless facts

material to the right to collect the debt

were not known and could not

reasonably have been known by the

official of the Agency who was charged

with the responsibility to discover and

collect such debts until within 10 years

of the initiation of the collection action.

A determination of when the debt first

accrued should be made according to

existing laws regarding the accrual of

debts, such as under 28 U.S.C. 2415.

Unless otherwise provided by contract

or law, debts or payments owed the

Board which are not subject to

administrative offset under 31 U.S.C.

3716 may be collected by administrative

offset under the common law or other

applicable statutory authority, pursuant

to this paragraph or Board regulations

established pursuant to such other

statutory authority.

(b) Collection by offset against a

judgment obtained by a debtor against

the United States shall be accomplished

in accordance with 31 U.S.C. 3728.

§ 102.160 Agency responsibilities.

(a) The Agency shall provide

appropriate written or other guidance to
Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations 55165

Agency officials in carrying out this

subpart, including the issuance of

guidelines and instructions, which may

be deemed appropriate. The Agency

shall also take such administrative steps

as may be appropriate to carry out the

purposes and ensure the effective

implementation of this subpart.

(b) Before collecting a claim by means

of administrative offset, the Agency

must ensure that administrative offset is

feasible, allowable and appropriate, and

must notify the debtor of the Agency’s

policies for collecting a claim by means

of administrative offset.

(c) Whether collection by

administrative offset is feasible is a

determination to be made by the Agency

on a case-by-case basis, in the exercise

of sound discretion. The Agency shall

consider not only whether

administrative offset can be

accomplished, both practically and

legally, but also whether administrative

offset will further and protect the best

interests of the United States

Government. In appropriate

circumstances, the Agency may give due

consideration to the debtor’s financial

condition, and it is not expected that

administrative offset will be used in

every available instance, particularly

where there is another readily available

source of funds. The Agency may also

consider whether administrative offset

would substantially interfere with or

defeat the purposes of the program

authorizing the payments against which

offset is contemplated.

(d) Administrative offset shall be

considered by the Agency only after

attempting to collect a claim under 31

U.S.C. 3711(a).

§ 102.161 Notification.

(a) The Agency shall send a written

demand to the debtor in terms which

inform the debtor of the consequences

of failure to cooperate. In the demand

letter, the Agency shall provide the

name of an Agency employee who can

provide a full explanation of the claim.

When the Agency deems it appropriate

to protect the Government’s interests

(for example, to prevent the statute of

limitations, 28 U.S.C. 2415, from

expiring), written demand may be

preceded by other appropriate actions.

(b) In accordance with guidelines

established by the Agency, the Agency

official responsible for collection of the

debt shall send written notice to the

debtor, informing such debtor as

appropriate:

(1) Of the nature and amount of the

Board’s claim;

(2) Of the date by which payment is

to be made (which normally should be

not more than 30 days from the date that

the initial notification was mailed or

hand delivered);

(3) Of the Agency’s intention to

collect by administrative offset and of

the debtor’s rights in conjunction with

such an offset;

(4) That the Agency intends to collect,

as appropriate, interest, penalties,

administrative costs and attorneys fees;

(5) Of the rights of such debtor to a

full explanation of the claim, of the

opportunity to inspect and copy Agency

records with respect to the claim and to

dispute any information in the Agency’s

records concerning the claim;

(6) Of the debtor’s right to

administrative appeal or review within

the Agency concerning the Agency’s

claim and how such review shall be

obtained;

(7) Of the debtor’s opportunity to

enter into a written agreement with the

Agency to repay the debt; and

(8) Of the date on which, or after

which, an administrative offset will

begin.

§ 102.162 Examination and copying of

records related to the claim; opportunity for

full explanation of the claim.

Following receipt of the demand letter

specified in § 102.161, and in

conformity with Agency guidelines

governing such requests, the debtor may

request to examine and copy publicly

available records pertaining to the debt,

and may request a full explanation of

the Agency’s claim.

§ 102.163 Opportunity for repayment.

(a) The Agency shall afford the debtor

the opportunity to repay the debt or

enter into a repayment plan which is

agreeable to the Agency and is in a

written form signed by such debtor. The

Agency may deem a repayment plan to

be abrogated if the debtor should, after

the repayment plan is signed, fail to

comply with the terms of the plan.

(b) The Agency has discretion and

should exercise sound judgment in

determining whether to accept a

repayment agreement in lieu of

administrative offset.

§ 102.164 Review of the obligation.

(a) The debtor shall have the

opportunity to obtain review by the

Agency of the determination concerning

the existence or amount of the debt as

set forth in the notice. In cases where

the amount of the debt has been fully

liquidated, the review is limited to

ensuring that the liquidated amount is

correctly represented in the notice.

(b) The debtor seeking review shall

make the request in writing to the

Agency, not more than 15 days from the

date the demand letter was received by

the debtor. The request for review shall

state the basis for challenging the

determination. If the debtor alleges that

the Agency’s information relating to the

debt is not accurate, timely, relevant or

complete, the debtor shall provide

information or documentation to

support this allegation.

(c) The Agency may effect an

administrative offset against a payment

to be made to a debtor prior to the

completion of the due process

procedures required by this subpart, if

failure to take the offset would

substantially prejudice the Agency’s

ability to collect the debt; for example,

if the time before the payment is to be

made would not reasonably permit the

completion of due process procedures.

Administrative offset effected prior to

completion of due process procedures

must be promptly followed by the

completion of those procedures.

Amounts recovered by administrative

offset, but later found not owed to the

Agency, will be promptly refunded.

(d) Upon completion of the review,

the Agency’s reviewing official shall

transmit to the debtor the Agency’s

decision. If appropriate, this decision

shall inform the debtor of the scheduled

date on or after which administrative

offset will begin. The decision shall

also, if appropriate, indicate any

changes in information to the extent

such information differs from that

provided in the initial notification to the

debtor under 102.161.

(e) Nothing in this subpart shall

preclude the Agency from sua sponte

reviewing the obligation of the debtor,

including a reconsideration of the

Agency’s determination concerning the

debt, and the accuracy, timeliness,

relevance, and completeness of the

information on which the debt is based.

§ 102.165 Cost shifting.

Costs incurred by the Agency in

connection with referral of debts for

administrative offset will be added to

the debt and thus increase the amount

of the offset. Such costs may include

administrative costs and attorneys fees.

§ 102.166 Additional administrative

collection action.

Nothing contained in this subpart is

intended to preclude the Agency from

utilizing any other administrative or

legal remedy which may be available.

§ 102.167 Prior provision of rights with

respect to debt.

To the extent that the rights of the

debtor in relation to the same debt have

been previously provided for under

some other statutory or regulatory

authority, the Agency is not required to
55166 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

duplicate those efforts before effecting

administrative offset.

Subpart V—Debt Collection

Procedures by Federal Income Tax

Refund Offset

102.168 Federal income tax refund offset;

purpose and scope.

102.169 Definitions.

102.170 Agency referral to IRS for tax

referral effect; Agency responsibilities.

102.171 Cost shifting.

102.172 Minimum referral amount.

102.173 Relation to other collection efforts.

102.174 Debtor notification.

102.175 Agency review of the obligation.

102.176 Prior provision of rights with

respect to debt.

§ 102.168 Federal income tax refund

offset; purpose and scope.

The regulations in this subpart specify

the Agency procedures that will be

followed in order to implement the

federal income tax refund offset

procedures set forth in 26 U.S.C.

6402(d) of the Internal Revenue Code

(Code), 31 U.S.C. 3720A, and 301.6402–

6 of the Treasury Regulations on

Procedure and Administration (26 CFR

301.6402–6). This statute and the

implementing regulations of the Internal

Revenue Service (IRS) at 26 CFR

301.6402–6 authorize the IRS to reduce

a tax refund by the amount of a past-due

legally enforceable debt owed to the

United States. The regulations apply to

past-due legally enforceable debts owed

to the Agency by individuals and

business entities. The regulations are

not intended to limit or restrict debtor

access to any judicial remedies to which

he or she may otherwise be entitled.

§ 102.169 Definitions.

(a) Tax refund offset refers to the IRS

income tax refund offset program

operated under authority of 31 U.S.C.

3720A.

(b) Past-due legally enforceable debt

is a delinquent debt administratively

determined to be valid, whereon no

more than 10 years have lapsed since

the date of delinquency (unless reduced

to judgment), and which is not

discharged under a bankruptcy

proceeding or subject to an automatic

stay under 11 U.S.C. 362.

(c) Individual refers to a taxpayer

identified by a social security number

(SSN).

(d) Business entity refers to an entity

identified by an employer identification

number (EIN).

(e) Taxpayer mailing address refers to

the debtor’s current mailing address as

obtained from IRS.

(f) Memorandum of understanding

refers to the agreement between the

Agency and IRS outlining the duties and

responsibilities of the respective parties

for participation in the tax refund offset

program.

§ 102.170 Agency referral to IRS for tax

referral effect; Agency responsibilities.

(a) As authorized and required by law,

the Agency may refer past-due legally

enforceable debts to the Internal

Revenue Service (IRS) for collection by

offset from any overpayment of income

tax that may otherwise be due to be

refunded to the taxpayer. By the date

and in the manner prescribed by the

IRS, the Agency may refer for tax refund

offset past-due legally enforceable debts.

Such referrals shall include the

following information:

(1) Whether the debtor is an

individual or a business entity;

(2) The name and taxpayer

identification number (SSN or EIN) of

the debtor who is responsible for the

debt;

(3) The amount of the debt;

(4) A designation that the Agency is

referring the debt and (as appropriate)

Agency account identifiers.

(b) The Agency will ensure the

confidentiality of taxpayer information

as required by IRS in its Tax

Information Security Guidelines.

(c) As necessary, the Agency will

submit updated information at the times

and in the manner prescribed by IRS to

reflect changes in the status of debts or

debtors referred for tax refund offset.

(d) Amounts erroneously offset will

be refunded by the Agency or IRS in

accordance with the Memorandum of

Understanding.

§ 102.171 Cost shifting.

Costs incurred by the Agency in

connection with referral of debts for tax

refund offset will be added to the debt

and thus increase the amount of the

offset. Such costs may include

administrative costs and attorneys fees.

§ 102.172 Minimum referral amount.

The minimum amount of a debt

otherwise eligible for Agency referral to

the IRS is $25 for individual debtors and

$100 for business debtors. The amount

referred may include the principal

portion of the debt, as well as any

accrued interest, penalties,

administrative cost charges, and

attorney fees.

§ 102.173 Relation to other collection

efforts.

(a) Tax refund offset is intended to be

an administrative collection remedy to

be utilized consistent with IRS

requirements for participation in the

program, and the costs and benefits of

pursuing alternative remedies when the

tax refund offset program is readily

available. To the extent practical, the

requirements of the program will be met

by merging IRS requirements into the

Agency’s overall requirements for

delinquent debt collection.

(b) As appropriate, debts of an

individual debtor of $100 or more will

be reported to a consumer or

commercial credit reporting agency

before referral for tax refund offset.

(c) Debts owed by individuals will be

screened for administrative offset

potential using the most current

information reasonably available to the

Agency, and will not be referred for tax

refund offset where administrative offset

potential is found to exist.

§ 102.174 Debtor notification.

(a) The Agency shall send appropriate

written demand to the debtor in terms

which inform the debtor of the

consequences of failure to repay debts

or claims owed the Board.

(b) Before the Agency refers a debt to

IRS for tax refund offset, it will make a

reasonable attempt to notify the debtor

that:

(1) The debt is past-due;

(2) Unless the debt is repaid or a

satisfactory repayment agreement is

established within 60 days thereafter,

the debt will be referred to IRS for offset

from any overpayment of tax remaining

after taxpayer liabilities of greater

priority have been satisfied; and

(3) The debtor will have a minimum

of 60 days from the date of notification

to present evidence that all or part of the

debt is not past due or legally

enforceable, and the Agency will

consider this evidence in a review of its

determination that the debt is past due

and legally enforceable. The debtor will

be advised where and to whom

evidence is to be submitted.

(c) The Agency will make a

reasonable attempt to notify the debtor

by using the most recent address

information available to the Agency or

obtained from the IRS, unless written

notification to the Agency is received

from the debtor stating that notices from

the Agency are to be sent to a different

address.

(d) The notification required by

paragraph (b) of this section and sent to

the address specified in paragraph (c) of

this section may, at the option of the

Agency, be incorporated into demand

letters required by paragraph (a) of this

section.

§ 102.175 Agency review of the obligation.

(a) The Agency official responsible for

collection of the debt will consider any

evidence submitted by the debtor as a

result of the notification required by

§ 102.174 and notify the debtor of the
Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations 55167

result. If appropriate, the debtor will

also be advised where and to whom to

request a review of any unresolved

dispute.

(b) The debtor will be granted 30 days

from the date of the notification

required by paragraph (a) of this section

to request a review of the determination

of the Agency official responsible for

collection of the debt on any unresolved

dispute. The debtor will be advised of

the result.

§ 102.176 Prior provision of rights with

respect to debt.

To the extent that the rights of the

debtor in relation to the same debt have

been previously provided under some

other statutory or regulatory authority,

including administrative offset

procedures set forth in Subpart U, the

Agency is not required to duplicate

those efforts before referring a debt for

tax refund offset.

By Direction of the Board.

John J. Toner,

Executive Secretary, National Labor Relations

Board.

[FR Doc. 97–28092 Filed 10–22–97; 8:45 am]

BILLING CODE 7545–01–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 110 and 165

[CGD 05–97–076]

RIN 2115–AA98

Delaware River Safety Zone and

Anchorage Regulations

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: The Army Corps of Engineers

has begun dredging parts of the

Delaware River including the Marcus

Hook Range Ship Channel. Because of

the dredging operations, temporary

additional requirements will be

imposed in Marcus Hook Anchorage

(Anchorage 7), the Deepwater Point

Anchorage (Anchorage 6), and the

Mantua Creek Anchorage (Anchorage 9).

The Coast Guard is also establishing a

temporary moving safety zone around

the dredge vessel Essex that will be

working in the Marcus Hook Range Ship

Channel adjacent to Anchorage 7.

EFFECTIVE DATES: Paragraph (b)(11) in 33

CFR 110.157 is effective from October 2,

1997 until 6 a.m. on December 20, 1997.

Section 165.T05–076 is effective from

October 2, 1997 until 6 a.m. on

December 20, 1997.

FOR FURTHER INFORMATION CONTACT:

LT S.A. Budka, Project Officer, U.S.

Coast Guard Captain of the Port, 1

Washington Ave., Philadelphia, PA

19147–4395, Phone: (215) 271–4889.

SUPPLEMENTARY INFORMATION: In

accordance with 5 U.S.C. 553(b)(3) and

5 U.S.C. 553(d), a Notice of Proposed

Rule Making (NPRM) was not published

for this regulation and good cause exists

for making it effective in less than 30

days after Federal Register publication.

The Coast Guard was informed by U.S.

Army Corps of Engineers, Philadelphia

District on September 26, 1997 that

dredging operations would commence

on October 2, 1997. Publishing a NPRM

and delaying its effective date would be

contrary to the public interest, since

immediate action is needed to protect

mariners from potential hazards

associated with the dredging operations

in the Marcus Hook Range Ship Channel

and to modify the anchorage regulations

to facilitate vessel traffic.

Background and Purpose

The U.S. Army Corps of Engineers

(ACOE) notified the Coast Guard that it

needed to conduct dredging operations

on the Delaware River, in the vicinity of

the Marcus Hook Range Ship Channel.

The dredging is needed to maintain the

project depth of the channel. Similar

dredging was conducted in 1995 and

1996. This period of dredging began

October 2, 1997 and is anticipated to

end on December 20, 1997.

To reduce the hazards associated with

dredging the channel, vessel traffic that

would normally transit through the

Marcus Hook Range Ship Channel will

be diverted through part of Anchorage 7,

reducing available anchorage space by

approximately one half. Vessels will

continue to be allowed to anchor in

available parts of Anchorage 7 during

the dredging operations; however,

permission to anchor must be obtained

from the Captain of the Port, who will

identify those parts of Anchorage 7 that

are expected to be available.

For the protection of mariners

transiting in the vicinity of dredging

operations, the Coast Guard is also

establishing a moving safety zone

around the dredging vessel Essex. The

safety zone will ensure that mariners

remain a safe distance from the dredging

equipment that could potentially be

dangerous.

Discussion of the Regulation

Section 110.157(b)(2) allows vessels

to anchor for up to 48 hours in the

anchorages listed in 110.157(a), which

includes Anchorage 7. However,

because of the limited anchorage space

available in Anchorage 7, the Coast

Guard is adding a temporary paragraph

33 CFR 110.157(b)(11) to provide

additional requirements and restrictions

on vessels utilizing Anchorage 7. During

the effective period, vessels desiring to

use Marcus Hook Anchorage

(Anchorage 7) must obtain permission

from the Captain of the Port,

Philadelphia at least 24 hours in

advance. The Captain of the Port will

permit only one vessel at a time to

anchor in Anchorage 7 and will grant

permission on a ‘‘first come, first serve’’

basis. A vessel will be directed to a

location within Anchorage 7 where it

may anchor, and will not be permitted

to remain in Anchorage 7 for more than

12 hours.

The Coast Guard expects that vessels

normally permitted to anchor in

Anchorage 7 will use Anchorage 6 off

Deepwater Point or Anchorage 9 near

the entrance to Mantua Creek, because

they are the closest anchorages to

Anchorage 7. To control access to

Anchorage 7, the Coast Guard is

requiring a vessel desiring to anchor in

Anchorage 7 obtain advance permission

from the Captain of the Port. To control

access to Anchorages 6 and 9, the Coast

Guard is requiring any vessel 700 feet or

greater in length obtain advance

permission from the Captain of the Port

before anchoring. The Coast Guard is

also concerned that the holding ground

in Anchorages 6 and 9 is not as good as

in Anchorage 7. Therefore, a vessel 700

to 750 feet in length is required to have

one tug standing alongside while at

anchor, and a vessel of over 750 feet in

length must have two tugs standing

alongside. The tug(s) must have

sufficient horsepower to prevent a

vessel from swinging into the channel if

necessary.

The Coast Guard is also establishing

a moving safety zone within a 150 yard

radius of the dredging operations being

conducted in the Marcus Hook Range

Ship Channel in the vicinity of

Anchorage 7 by the dredge vessel Essex.

The safety zone will protect mariners

transiting the area from the potential

hazards associated with dredging

operations. Vessels transiting the

Marcus Hook Range Ship Channel are

required to divert from the main ship

channel through Anchorage 7, and must

operate at the minimum safe speed

necessary to maintain steerage and

reduce wake. No vessel may enter the

safety zone unless it receives permission

from the Captain of the Port.

Regulatory Evaluation

This rule is not a significant

regulatory action under section 3(f) of

Executive Order 12866 and does not

require an assessment of potential costs

and benefits under section 6(a)(3) of that