This rule has been determined to be “not significant” for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget (OMB).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not retroactive. This rule will not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to the requirement set forth in the Regulatory Flexibility Act, AMS has considered the economic impact of this action on small entities. It has been determined that its provisions would not have a significant economic effect on a substantial number of small entities. For the purpose of the Regulatory Flexibility Act, a dairy products manufacturer is a “small business” if it has fewer than 500 employees. If a plant is part of a larger company operating multiple plants that collectively exceed the 500 employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.

Under the Agricultural Marketing Act of 1946, the Dairy Grading Branch, AMS, provides voluntary Federal inspection and dairy product grading services to about 350 plants. About 210 of these users are small businesses under the criteria established by the Small Business Administration (13 CFR 121.201). Manufacturing plants participating in the voluntary plant inspection program have their facility inspected against established USDA “General Specifications for Dairy Plants Approved for USDA Inspection and Grading Service” construction and sanitation requirements. Dairy products manufactured in facilities complying with the USDA inspection requirements are eligible to have their output graded against official quality standards and specifications established by AMS and certain contract provisions between buyer and seller. Products tested and graded by the Dairy Grading Branch have certificates issued describing the product's quality and condition.

AMS continually reviews its cost structure to assure it is operating efficiently while maintaining the resources necessary to meet industry's demand for services. Periodically, fees must be adjusted to ensure that the program remains financially self-supporting. To reduce costs, the Dairy Grading Branch has continued to automate its business practices. Progress to date has been significant and has resulted in savings equal to two staff years to the program. Further enhancements in automated business practices will continue to improve the efficiency and timeliness of providing inspection and grading services and information to users of these services.

Employee salaries and benefits now account for nearly 73 percent of the operating costs of the Dairy Grading Branch. Grading fees were adjusted last in 2004 (69 FR 8797). Salary increases and locality adjustments, effective January 2005 and January 2006, have resulted in an increase in employee cost of 6.1 percent. As a result, annual salary and benefit costs to the program for Fiscal Year (FY) 2006 are approximately $240,000 more than for the same number of employees in FY 2004. Inflation raised non-salary costs approximately 6.8 percent for the two-year period ending December 2005. It is expected that non-salary operating expenses will continue to increase at a rate of 3.0 percent per year. Current revenue projections using Dairy Grading Branch's current fee schedule will not provide income sufficient to cover these escalating program operation costs and maintain reserves (4 months of costs) according to AMS policy (AMS Directive 408.1).

Since projected revenues will not cover program costs while maintaining an adequate reserve, the Dairy Grading Branch will be put in an unstable financial position that will adversely affect the ability to provide dairy inspection and grading services. Without a fee increase, total revenue projections for FY 2006 are $4.980 million. Total costs for the same period of time are projected to be $5.778 million. The shortfall will reduce the trust fund balance to $1.578 million or 3.3 months of operating reserve at the end of FY 2006 which is below Agency policy.

AMS estimates these fee increases will provide the Dairy Grading Branch an additional $504,000 annually to recover program costs and to provide for continued automation of business practices.

This rule will raise the fees charged to businesses for voluntary plant inspections, grading services for dairy and related products, and the evaluation of food processing equipment. However, the impact on all businesses, including small entities is very similar. Even though fees will be increased approximately 9.7% for non-resident services and 10.5% for continuous resident services, these fee increases should not significantly affect these entities. Adjusted for inflation, the new fee schedule is actually less than in 1998. These businesses are under no obligation to use these voluntary user-fee based services and any decision on their part to discontinue the use of the services would not prevent them from marketing their products.

A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that this rule would have no impact on reporting, recordkeeping, or other compliance requirements for entities currently using voluntary Federal dairy inspection and grading services because they would remain identical to the current requirements.

This action does not require additional information collection that requires clearance by OMB. The primary sources of data used to complete the forms are routinely used in most business transactions. Forms require only a minimal amount of information which can be supplied without data processing equipment or a trained statistical staff. Thus, the information collection and reporting burden is relatively small. Requiring the same information from all participating dairy plants does not significantly disadvantage any plant that is smaller than the industry average.

The Secretary of Agriculture is authorized by the Agricultural Marketing Act of 1946 (AMA), as amended (7 U.S.C. 1621, et seq. ), to provide voluntary Federal dairy inspection and grading services to facilitate the orderly marketing of dairy products and to enable consumers to obtain the quality of dairy products they desire. The AMA also provides for the collection of reasonable fees from users of the Federal dairy inspection and grading services to cover the cost of providing these services. The hourly fees are established by distributing the program's projected operating costs over the estimated service-revenue hours provided to users. AMS continually reviews its cost structure to assure it is operating efficiently while maintaining the resources necessary to meet industry's demand for services. Periodically, fees must be adjusted to ensure that the program remains financially self-supporting.

To reduce costs, the Dairy Grading Branch has continued to automate its business practices. Progress to date has been significant and has resulted in savings equal to two staff years to the program. Further enhancements in automated business practices will continue to improve the efficiency and timeliness of providing inspection and grading services and information to users of these services.

Employee salaries and benefits now account for nearly 73 percent of the operating costs of the Dairy Grading Branch. Grading fees were last adjusted in 2004 (69 FR 8797). Salary increases and locality adjustments, effective January 2005 and January 2006, have resulted in an increase in employee cost of 6.1 percent. As a result, annual salary and benefit costs to the program for FY 2006 are approximately $240,000 more than for the same number of employees in FY 2004. Inflation raised non-salary costs approximately 6.8 percent for the two-year period ending December 2005. It is expected that non-salary operating expenses will continue to increase at an annual rate of 3.0 percent and that salary and benefits will increase by 2.1 percent in January 2007. Current revenue projections using Dairy Grading Branch's current fee schedule will not provide income sufficient to cover these escalating program operation costs and maintain reserves (4 months of costs) according to AMS policy (AMS Directive 408.1).

Since projected revenues will not cover program costs while maintaining an adequate reserve, the Dairy Grading Branch will be put in an unstable financial position that will adversely affect the ability to provide dairy inspection and grading services. Without a fee increase, total revenue projections for FY 2006 are $4.980 million. Total costs for the same period of time are projected to be $5.778 million. The shortfall, if allowed to continue, would have reduced the trust fund balance to $1.578 million or 3.3 months of operating reserve at the end of FY 2006 which is below Agency policy.

In view of the above considerations, AMS proposed to increase the hourly fees associated with Federal dairy grading and inspection services. Currently the fees are $57.00 per hour for continuous resident services and $62.00 per hour for non-resident services. The proposed increases result in fees of $63.00 per hour for continuous resident services and $68.00 per hour for non-resident services between the hours of 6 a.m. and 6 p.m. The proposed fees represent increases of $6.00 per hour (10.5 percent) for continuous resident and $6.00 per hour (9.7 percent) for non-resident services. The fee for non-resident services between the hours of 6 p.m. and 6 a.m. would be $74.80 per hour. For services performed in excess of 8 hours per day and for services performed on Saturday, Sunday, and legal holidays, 1 1/2 times the base fees would apply and result in increases to $94.50 per hour for resident grading and to $102.00 per hour for non-resident grading services.

AMS estimates these fee increases will provide the Dairy Grading Branch an additional $504,000 annually to recover program costs including providing for continued automation of business practices.

A notice of proposed rulemaking was published in the Federal Register on April 20, 2006 (70 FR 20351). Dairy Programs received two comments during this period.

The first comment received was a public submission in opposition to the fee increase. The commenter expressed concern that these fee increases would increase dairy product prices, and suggested that other methods of increasing revenue, such as increased use of appropriated funds, be explored. Dairy inspection and grading services are voluntary, and while they are used extensively by manufacturers of certain dairy products, they are not used by all segments of the dairy industry. This modest increase in fees is not likely to generate substantial price increases. Further, dairy inspection and grading programs are supported entirely by these user fees, not through appropriated funds. This fee increase is necessary for the program to remain self-sufficient and maintain reasonable operating reserves.

The second comment was received from the American Butter Institute (ABI). ABI expressed concern that the rate of increase in grading and inspection fees exceeds the rate of inflation since 2004, and that when combined with the 2004 fee increase, constitutes fees that are 25 percent higher than they were 30 months ago. ABI also encourages that further automation of business practices be explored to offset a larger portion of the projected revenue shortfall, rather than a large increase in fees. By our calculation, this increase will result in grading fees that are about 21 (resident grader) to 24 percent (non-resident grader) higher than that in March 2004. Prior to the April 2004 increase, grading fees had remained unchanged for 75 months. Thus on average, grading fees will have increased only about 2.4 to 2.7 percent annually since 1998, when this increase becomes effective. This longer term rate of increase is lower than average rate of inflation since 1998. Adjusted for inflation, grading fees after this increase will be lower in real dollars than they were in 1998. Dairy Programs continues to evaluate the business practices of its grading and inspection programs, and will implement, as they are identified, measures that should result in increased program efficiency.

Each of the comments received was carefully considered. Nevertheless, Dairy Programs' current grading and inspection fees are not adequate, and this increase in fees is necessary. Dairy Programs has and continues to seek cost savings by reducing overhead and travel costs, and increasing program efficiency through enhanced automation of business practices.

Pursuant to the Administrative Procedures Act (5 U.S.C. 553), good cause is found to make this effective less than 30 days after publication in the Federal Register . This rule will take effect the next day following publication to minimize financial losses for dairy grading and inspection services. Revenues are not sufficient to cover program costs or allow the Dairy Grading Branch to maintain adequate operating reserves. The Branch is currently operating with a monthly revenue loss of $42,000, which will adversely affect its ability to provide inspection and grading services.

This rule is issued under Marketing Agreement and Order No. 924, as amended (7 CFR 924), regulating the handling of fresh prunes grown in designated counties in Washington and in Umatilla County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended, (7 U.S.C. 601-674), hereinafter referred to as the “Act.” This rule is also issued under section 8e of the Act regarding the establishment of inspection and quality, grade, size, or maturity requirements on imports of commodities that are similarly regulated under Federal marketing orders.

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This rule continues in effect the action that suspended the handling regulations prescribed under the order for the 2006 and future seasons. Specifically, this rule suspends the minimum grade, size, quality, maturity, and inspection requirements under the order. In addition, this rule continues in effect the suspension of regulation of fresh prune import under section 8e of the Act.

Furthermore, this rule continues in effect the action that established a new handler reporting requirement. The new handler report provides the Committee with information that has previously been available from the Federal-State Inspection Service (Inspection Service). As a result of suspending the handling regulations, including mandatory inspections, information from the Inspection Service is no longer available to the Committee to compile industry statistics and to assess handlers. The new handler reporting requirement allows the Committee to obtain information directly from handlers similar to the information that has been obtained previously from the Inspection Service.

Section 924.52 of the order authorizes the issuance of regulations for grade, size, quality, maturity, and pack for fresh prunes grown in the production area. Section 924.53 authorizes the modification, suspension, or termination of regulations issued under § 924.52.

Section 924.55 provides that whenever the handling of any variety of fresh prunes is regulated pursuant to § 924.52 or § 924.53, such prunes must be inspected by the Inspection Service, and certified as meeting the applicable requirements. The cost of the inspection and certification is borne by handlers.

Section 924.60 authorizes the Committee, with the approval of USDA, to require reports and other information from handlers that are necessary for the Committee to perform its duties.

Minimum grade, size, quality, maturity, and inspection requirements for fresh prunes regulated under the order are specified in § 924.319 (the section suspended by this rule). When effective, § 924.319, with exemptions for certain varieties and types of shipments, provides that all fresh prunes grade at least U.S. No. 1, except that at least two-thirds of the surface of the prune is required to be purplish in color, and such prunes measure not less than 1 1/4 inches in diameter as measured by a rigid ring. The regulation includes a minimum quantity exemption, as well as specific tolerances for prunes that fail to meet color, minimum diameter, and quality requirements.

Regulation regarding the importation of fresh prunes into the United States under Section 8e of the Act is set forth in § 944.700.

The Committee meets regularly to consider recommendations for modification, suspension, or termination of the regulatory requirements for Washington-Oregon fresh prunes which have been issued on a continuing basis. Committee meetings are open to the public and interested persons may express their views at these meetings. The USDA reviews Committee recommendations, information submitted by the Committee, and other available information, and determines whether modification, suspension, or termination of the regulatory requirements would tend to effectuate the declared policy of the Act.

At its February 16, 2006, meeting, the Committee unanimously recommended suspending the handling regulations and establishing a new handler reporting requirement for the 2006 and future seasons.

The objective of handling regulation has been to ensure that only acceptable quality fresh prunes enter fresh market channels, thereby ensuring consumer satisfaction, increasing sales, and improving returns to producers. While the industry continues to believe that quality is an important factor in maintaining sales, the Committee believes the cost of inspection and certification (mandated when the handling regulations are in effect) currently exceeds the benefits derived.

Fresh prune prices have been at low levels in recent seasons, and many producers have faced difficulty covering their production costs. Consequently, the Committee has, for a number of years, explored the possibility of reducing the industry's costs through the elimination of mandatory inspections and the accompanying fees. The Committee is concerned, however, that the elimination of current handling and inspection requirements could possibly result in lower quality fresh prunes being shipped to fresh markets, thereby affecting consumer demand. Also, there is some concern that, should overall quality decline, the Washington-Oregon fresh prune industry could lose sales to other prune producing regions.

After much consideration, the Committee recommended the suspension of the handling regulations for the 2006 and future seasons, but stipulated that the Committee would assess marketing conditions annually to determine if lifting the suspension is warranted. The suspension enables the industry to realize needed cost savings while the impact of the suspension is evaluated, on an ongoing basis, by the Committee. Should the market situation so dictate, the Committee may take appropriate action to recommend reinstating regulation.

This final rule enables Washington-Oregon fresh prune handlers to continue to ship prunes without regard to minimum grade, size, quality, maturity, and inspection requirements. This allows handlers to decrease their total costs by eliminating the expenses associated with mandatory inspection. This rule does not restrict handlers from seeking product inspection on a voluntary basis if they find inspection desirable. The Committee will evaluate the effect the suspension of the handling regulations has on market conditions and on producer returns each year the suspension is in effect, and, if necessary, make recommendations to USDA for changes.

The suspension of the handling regulation and mandatory inspections also results in the elimination of the inspection certificates that have been generated by the Inspection Service and forwarded to the Committee. The Committee used these certificates as the basis for assessment billing from handlers and for compiling prune industry statistics. In the absence of the inspection certificates, handlers are now required to submit reports directly to the Committee to facilitate the collection of assessments and the compilation of industry statistics.

Therefore, a new § 924.160 Reports has now been added which requires each handler to submit to the Committee, on or before October 30 of each year, a “Handler Statement for Washington-Oregon Fresh Prunes” containing the following information: (a) The handler's name and address; (b) the name and address of each producer; (c) the quantity, in field run tons, of early and late fresh prunes handled by each handler; (d) the assessment due and enclosed; (e) the name, telephone number, and signature of the authorized person completing the form; and (f) the date the form is signed.

Authorization to assess handlers enables the Committee to incur expenses that are reasonable and necessary to administer the program. The new reporting requirement facilitates the Committee's ability to collect assessments needed to cover necessary program costs. Even though reporting requirements are increased, this final rule, through the elimination of inspection and certification requirements, is expected to reduce overall industry expenses.

Consistent with the suspension of § 924.319, this final rule also suspends § 924.110 of the rules and regulations in effect under the order. Section 924.110 contains provisions for handlers to apply for waivers from mandatory inspection when such inspection is not readily available from the Inspection Service. With the suspension of regulation, such waivers are no longer necessary.

Contained within the handling regulations (§ 924.319(b)) is a provision allowing the handling of any individual shipment which, in the aggregate, does not exceed 500 pounds net weight of Stanley or Merton variety prunes, or 350 pounds net weight of any other variety of prunes, without regard to the inspection and assessment requirements issued under the order. Regardless of the suspension of handling regulations, the Committee desires that this provision remain effective for the purpose of providing a minimum quantity exemption from assessments. Thus, a new § 924.121 Minimum quantity exemption is established. This section essentially continues the provision with the same minimum quantity exemption threshold as in 924.319(b), but in regards to the assessment requirements contained in § 924.41 only.

Section 8e of the Act requires that whenever grade, size, quality, or maturity requirements are in effect for certain commodities under a domestic marketing order, including fresh prunes, imports of that commodity must meet the same or comparable requirements. Section 944.700 contains the regulations for fresh prune imports. Since this final rule indefinitely suspends the handling regulation for domestic fresh prunes, including grade, size, quality, and maturity requirements, the regulation of imported fresh prunes is suspended indefinitely as well.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

Currently, there are 7 handlers of Washington-Oregon fresh prunes who are subject to regulation under the order and approximately 100 fresh prune producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

Fresh prune production has been approximately 5,000 to 7,000 tons per year for the past several years. The Committee estimates that all Washington-Oregon fresh prune handlers combined ship less than $6,500,000 worth of prunes on an annual basis. In addition, based on acreage, production, and producer prices reported by the National Agricultural Statistics Service, and the total number of Washington-Oregon fresh prune producers, average annual producer receipts are approximately $13,000, which is considerably less than the $750,000 threshold. In view of the foregoing, it can be concluded that all of the handlers and producers of Washington-Oregon fresh prunes may be classified as small entities.

This final rule continues in effect the suspension of the handling regulations specified in § 924.319, as well as the fresh prune import regulations specified in § 944.700. Furthermore, this rule continues in effect the modified minimum quantity exemption as a new § 924.121 and the addition a new reporting requirement as § 924.160. The suspension of the handling regulation will allow the Washington-Oregon fresh prune industry to market fresh prunes without regard to minimum grade, size, quality, maturity, and inspection requirements. Authority for this action is provided in §§ 924.53 and 924.60.

The handling regulations help ensure that only acceptable quality fresh prunes enter fresh market channels, thereby ensuring consumer satisfaction, increasing sales, and improving returns to producers. While the industry continues to believe that quality is an important factor in maintaining sales, the Committee believes the cost of inspection and certification exceeds the benefits derived. The Committee believes that the demands of wholesale buyers and consumers will drive handlers and producers to maintain a high level of product quality without the necessity of minimum quality standards and mandatory inspections. The Committee will review the suspension of the handling regulations and all relevant related issues on an annual basis. The handling regulations can be reinstated by way of Committee recommendation and USDA approval through the informal rulemaking process.

Fresh prune prices have been at low levels in recent years, and many producers have faced difficulty covering their production costs. In response to the adverse economic conditions being experienced by the industry, the Committee discussed the possibility of reducing costs through the elimination of mandatory inspection and the related fees. The Committee is concerned, however, that the elimination of current handling and inspection requirements could possibly result in lower quality fresh prunes being shipped to fresh markets. Also, should fruit quality decline, there is some concern among Committee members that the Washington-Oregon fresh prune industry could lose sales to other prune producing regions.

While acknowledging these concerns, the Committee believes that the benefits derived from suspending the regulations outweigh the potential costs. The Committee also believes that the current marketing situation makes regulation unnecessary, that the cost of regulation outweighs the benefits, and that the conditions leading to the suspension will perpetuate well into the future. Therefore, the Committee recommended that the suspension of the handling regulations be effective not only for the upcoming season, but for future seasons as well. The indefinite suspension will alleviate the need for annual rulemaking to maintain the suspension while allowing the Committee to monitor the impacts of the suspension and consider appropriate actions for ensuing seasons. If and when the industry experiences changes in the marketing environment that would make reinstating the handling regulations necessary, the Committee has the ability to quickly respond.

This final rule enables handlers to ship prunes without regard to the minimum grade, size, quality, maturity, and inspection requirements of the order for the 2006 and future seasons. This allows handlers to decrease costs by eliminating the costs associated with mandatory inspection but does not, however, restrict handlers from seeking inspection on a voluntary basis if they find inspection desirable. The Committee will evaluate the effect that suspension of the handling regulations has on marketing conditions and on producer returns at their annual meeting each spring.

The suspension of the handling regulations results in the elimination of mandatory inspections and, in turn, the inspection certificates that are generated by the Inspection Service and subsequently provided to the Committee. The Committee has in the past used such certificates for assessment billing purposes and for compiling industry statistics. As a result of the suspension of the handling regulations, the Committee will require a report directly from each handler for the purpose of obtaining information on which to collect assessments and generate statistical information.

The Committee anticipates that this rule will not negatively impact small handlers and producers because it suspends minimum grade, size, quality, maturity, and inspection requirements. The total cost of inspection and certification for fresh shipments of Washington-Oregon fresh prunes during the 2005 marketing season is estimated by the Committee to have been $0.23 per hundredweight, or approximately $27,000 total. This represents approximately $4,000 per handler. Since handlers may continue to have their prunes voluntarily inspected, the Committee expects that some handlers will continue to have at least a portion of their fresh prunes inspected and certified by the Inspection Service.

Alternatives to the suspension of the handling regulations considered by the Committee included maintaining the status quo, suspending the regulations for one season only, and terminating the marketing order in its entirety. The Committee believes, however, that the continuation of regulation would be a financial burden on the industry, given the current market situation and outlook. With that perspective, continuing to regulate was not a viable option to the Committee. The Committee also discussed suspending regulation one season at a time, but rejected that option as well. Finally, the Committee considered terminating the order in its entirety, but declined to take that action because the Committee continues to believe that the order has purpose, even without handling regulation.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the Washington-Oregon fresh prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the February 16, 2006, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

An interim final rule concerning this action was published in the Federal Register on May 9, 2006 (71 FR 26817). Copies of the rule were mailed by the Committee's staff to all Committee members and fresh prune handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register and the USDA. A 60-day comment period ending July 10, 2006, was provided to allow interested persons to respond to the interim final rule. Two comments were received during the comment period. However, as neither comment addressed the substance of this rule, they will not be considered in this document.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

As mentioned previously, this action requires an additional collection of information. The information collection requirements are discussed in the following section.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection requirements that are contained in this rule were approved by the Office of Management and Budget (OMB), under OMB No. 0581-0237. The information collection has been merged into OMB No. 0581-0189, Generic OMB Fruit Crops, which expires September 30, 2007.

In summary, the additional reporting requirements will enable the Committee to collect information from fresh prune handlers regarding the total quantity of early and late fresh prunes handled during the season, which was previously obtained from the inspection certificates issued by the Inspection Service. However, this source will no longer be available under the suspension of the handling regulations. The Committee will use used by the Committee to compile information that is essential for the collection of handler assessments, to provide production statistics to the industry, and to help ensure compliance with the order's provisions. In addition, the form will assist the Committee and USDA with oversight and planning.

The Agricultural Marketing Service (AMS) is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (71 FR 26817, May 9, 2006) will tend to effectuate the declared policy of the Act.

The U.S. Trade Representative has reviewed this final rule and concurs with its issuance.

I. Background and Analysis of the Interim Final Rule

In light of the recent theft of sensitive personal information from various federal agencies and in response to the Office of Management and Budget's memorandum (M-06-15 (May 22, 2006)) directing agencies to review privacy policies and processes, the Finance Board has undertaken a comprehensive review of agency practices related to the collection, use, and protection of personally identifiable information. As a result of that review, the Finance Board has enhanced the safeguards for sensitive information by adding two-factor authentication and data encryption to the agency's network infrastructure and is beginning to implement government-wide personal identity verification management standards that will result in issuance of new ID cards for all employees and contractors that may include full name, date of birth, image (photograph), fingerprints, organization affiliation (e.g., employee or contractor), organization/office of assignment, grade, e-mail address, United States citizenship status, and results of background investigation. The Finance Board also is updating both its Privacy Act systems of records and implementing rule.

The current Privacy Act rule, codified at 12 CFR part 913, was last revised in 2003. See Resolution Number 2003-08, published at 68 FR 39810 (July 3, 2003) (interim final rule), and Resolution Number 2003-25, published at 68 FR 59309 (Oct. 15, 2003) (final rule) (available electronically in the FOIA Reading Room on the Finance Board Web site at: http://www.fhfb.gov/Default.aspx?Page=59&Top=4 ). The substantive amendments this interim final rule makes include the addition of new sections concerning security of systems of records, use and collection of social security numbers, and employee responsibilities under the Privacy Act. These amendments are modeled after the U.S. Department of Justice Privacy Act implementing rule, and are intended to enhance the agency's ability to protect personally identifiable information.

Elsewhere in this issue of the Federal Register , the Finance Board is publishing a notice updating the agency's Privacy Act systems of records to reflect the new office address, changes to certain records retention periods, and the shift in responsibility for records related to appointed Federal Home Loan Bank directors from the Office of the Chairman to the Office of Supervision. We are revising the system of records concerning Office of Inspector General (OIG) records to cover both audit and investigative files and, at the request of the OIG, adding several routine uses. We also are adding two new systems of records. The first covers examination work papers a Finance Board examiner uses to determine whether a Federal Home Loan Bank's Affordable Housing Program (AHP) complies with applicable laws and regulations. The second covers a Personal Identity Verification (PIV) Management System as a result of new, government-wide identification requirements for all federal employees.

The Finance Board also is amending the fee schedule in its FOIA regulation to take into account increased salary and operating costs. The Finance Board determines the amount of the fee it charges to duplicate records under the Privacy Act in accordance with the FOIA fee schedule. More specifically, the Finance Board is increasing the hourly search charge for clerical staff from $28.00 to $31.00, for supervisory/professional staff from $53.00 to $72.00, and for computer operators from $48.00 to $59.00. The hourly charge to review records increases from $53.00 to $72.00.

The Finance Board is promulgating these changes as an interim final rule because it is in the public interest to enhance the agency's ability to protect personally identifiable information. Accordingly, the Finance Board for good cause finds that the notice and publication requirements of the Administrative Procedure Act are unnecessary. See 5 U.S.C. 553(b)(3)(B). However, because this type of rulemaking generally requires notice and receipt of public comment, the Finance Board will accept written comments on the interim final rule on or before November 16, 2006.

For the reasons stated in part II above, the Finance Board for good cause finds that the interim final rule should become effective on October 17, 2006. See 5 U.S.C. 553(d)(3).

The Finance Board is adopting the amendments to parts 910 and 913 in the form of an interim final rule and not as a proposed rule. Therefore, the provisions of the Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2), 603(a).

The interim final rule does not contain any collections of information under the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted any information to the Office of Management and Budget for review.

On March 13, 2006 a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Wyoming Valley Medical Center, Wilkes Barre, PA, was published in the Federal Register . Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 13, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Wyoming Valley Medical Center, Wilkes Barre, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulation action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation, as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On March 2, 2006 a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Tyler Memorial Hospital Heliport, Tunkhannock, PA, was published in the Federal Register . Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 2, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006 and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Tyler Memorial Hospital Heliport, Tunkhannock, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation, as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On March 13, 2006, a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Nessmuk Helipad, Wellsboro, PA, was published in the Federal Register . Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 13, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006 and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Nessmuk Helipad, Wellsboro, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

History

On March 13, 2006 a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Jersey Shore Airport, PA, was published in the Federal Register . Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 31, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9, dated September 1, 2006 and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Jersey Shore Airport, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On March 30, 2006 a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Hill Top Heliport, Troy, PA, was published in the Federal Register .

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 30, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9, dated September 1, 2006 and effective September 15, 2006 which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Hill Top Heliport, Troy, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

History

On March 13, 2006 a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) for an RNAV, Helicopter Point in Space Approach to the Ridgeway Landing Zone, Ridgeway, PA, was published in the Federal Register. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before may 13, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006 and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Ridgeway Landing Zone, Ridgeway, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On March 30, 2006 a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E airspace extending upward from 700 feet Above Ground Level (AGL) from an RNAV, Helicopter Point in Space Approach to the Robert Packer Hospital, Sayre, PA, was published in the Federal Register . Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 30, 2006. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North American Datum 83.

Class E airspace areas designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9, dated September 1, 2006 and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting Instrument Flight Rules (IFR) operations at the Robert Packer Hospital, Sayre, PA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html .

Sections 221(i) and 1614(a)(3)(H)(ii)(I) of the Act and §§ 404.1589, and 416.989 of our regulations require that after we find that you are disabled, we evaluate your impairment(s) from time to time to determine if you remain disabled. We call this evaluation a continuing disability review (CDR). If the medical and other evidence shows that you are not disabled under the standards set out in sections 223(f) and 1614(a)(4) of the Act, we will end the payment of cash benefits and terminate your period of disability.

Section 1614(a)(3)(H)(iii) of the Act and § 416.987 of our regulations require that if you are eligible for payments as a child under title XVI by reason of disability, we redetermine that eligibility during the one-year period beginning on your 18th birthday, or, in lieu of a CDR, whenever we determine that your case is subject to such a review. We call this evaluation an age-18 redetermination. If the medical and other evidence shows that you are not disabled under the standards set out in section 1614(a)(3)(A)-(B) of the Act, we will end the payment of cash payments and terminate your period of disability.

Sections 223(f) and 1614(a)(4) of the Act provide that, in general, if you receive disability benefits under titles II and/or XVI of the Act, we may find that you are no longer disabled if substantial evidence shows that there has been medical improvement in your impairment or combination of impairments, and you are now able to do substantial gainful activity. Under title XVI, if you are a child (an individual under age 18), substantial evidence must show that there has been medical improvement in your impairment or combination of impairments, and the impairment(s) must no longer cause marked and severe functional limitations. We call this the medical improvement review standard (MIRS), and we apply it whenever we do a CDR for an adult or a child. The statute also provides, however, for several exceptions to the “medical improvement” requirement where we will not apply the MIRS. One of those exceptions to applying the MIRS is the situation where you fail, without good cause, to cooperate with us when we do a CDR.

When we begin a CDR or an age-18 redetermination, we notify you that we are reviewing your eligibility for disability benefits and explain why we are reviewing your eligibility; what standard will apply, either the MIRS in a CDR or the initial claims criteria in an age-18 redetermination; that our review could result in the termination of your benefits; and that you have the right to submit medical and other evidence for us to consider during the CDR or the age-18 redetermination. Before we determine whether you are still disabled, we develop a complete medical history covering at least the 12 months preceding the date that you complete a report about your continuing disability status. If our review shows that we should stop your benefits, we notify you in writing and give you the opportunity to appeal. (See §§ 404.1589 and 416.989 of our regulations.) We explain when and how often we will do a CDR in §§ 404.1590 and 404.1591 of our title II regulations and in §§ 416.990 and 416.991 of our title XVI regulations. We explain when we will do an age-18 redetermination in § 416.987 of our title XVI regulations.

When we do a CDR or age-18 redetermination, §§ 404.1594(e)(2), 416.987(e)(3), 416.994(b)(4)(ii) and 416.994a(f)(2) of our regulations set out the general principle that is reflected in sections 223(f) and 1614(a)(4) of the Act; i.e. , that you have the responsibility to cooperate with us, or take any required action that we decide is necessary to allow us to complete the CDR or age-18 redetermination. If you do not cooperate with us, and you do not have good cause as defined in §§ 404.911 and 416.1411 of our regulations for not cooperating, we will find that your disability has ended.

We currently have no provision in our regulations that allows us to suspend your benefits under title II of the Act if you fail to cooperate with us when we request necessary information during a CDR. However, § 416.1322 of our title XVI regulations provides general authority that allows us to suspend your payments under title XVI of the Act, when you fail to cooperate with our requests for information, including during a CDR or age-18 redetermination.

When we suspend your title XVI payments for such failure to cooperate under § 416.1322, we follow § 416.714(b) of our regulations, which gives you thirty days from the date of our written request to comply with the request for information. We also follow § 416.1336 of our regulations, which provides that before we suspend, reduce, or terminate your title XVI payments, we will give you advance notice of our intent and provide you with appeal rights and payment continuation rights pending resolution of the appeal. When we terminate your title XVI payments due to continuous suspension of payments, we follow § 416.1335 of our regulations, which provides that we will terminate your eligibility for payments following 12 consecutive months of payment suspension.

We are continually exploring ways to improve the disability process. These revisions will allow us to make our rules consistent for all beneficiaries under both titles II and XVI, implement a more efficient CDR process, encourage beneficiaries to cooperate during the CDR or age-18 redetermination process, and make the process less burdensome.

As a result of the revisions, your failure to cooperate in the CDR process will result initially in a suspension rather than a termination of benefits based on a determination that you are no longer entitled to benefits. To have your benefits resumed, you will only have to contact your local Social Security office and provide the requested information and you will have up to 12 months to do so. Accordingly, during the 12 month period, you will not have to file an appeal in order to have your benefits resumed. In addition, you will not have to request, prepare for, and attend a hearing for your benefits to be resumed.

We will start to use these final rules on their effective date. We will continue to use our prior rules until the effective date of these final rules. When these final rules become effective, we will apply them to CDRs and age-18 redeterminations that we initiate on or after the effective date.

We are revising §§ 404.1587 and 404.1596 of our title II regulations and adding a new § 416.992 to our title XVI regulations. With respect to § 404.1587, we are revising the title to reflect that your benefits may be terminated as well as suspended. In addition, we are designating the current paragraph as paragraph (a) and adding a heading to it. We are also adding new paragraphs (b) and (c). Under the new § 404.1587(b), we will suspend your benefits during a CDR when you do not cooperate with us by failing, without good cause, to comply with our written request for any necessary information. If you subsequently give us the information that we requested, we will reinstate your benefits and continue with the CDR process. We will reinstate your benefits for any previous month for which they are otherwise payable.

The regulatory language in this final rule has been changed from the language that appeared in the notice of proposed rulemaking (NPRM), (70 FR at 72418). We have reordered the phrases in final § 404.1587(b) to state that “we will reinstate your benefits for any previous month for which they are otherwise payable, and continue with the CDR process.” This was done in response to a public comment that the regulatory language in the proposed rules could be misinterpreted to mean that we will not reinstate benefits until we complete the CDR process. Accordingly, the phrase was restructured for clarity in § 404.1587(b) and also in the parallel language in new §§ 404.1596(d) and 416.992.

Under the new § 404.1587(c), we will terminate your benefits following 12 consecutive months of benefit suspension when you fail to comply with our written request for any necessary information made during a CDR. This termination will be effective with the start of the 13th month after your benefits were stopped because you failed to cooperate. You will have the right to appeal the termination, but you will not have benefit continuation rights.

Under the revised § 404.1596, the title will reflect that your benefits may be terminated as well as suspended. We are also removing current paragraphs (c)(1) and (c)(2) and adding new paragraphs (d) and (e) to explain that we will not make a medical determination when you do not cooperate with us by failing to comply with our written request for any necessary information. We will suspend your benefits only after we give you advance notice as described in § 404.1595. The advance notice will tell you what you need to do so that your benefits are not suspended as outlined in § 404.1595(b)(3) of our regulations.

In the new § 404.1596(d), we are adding language to explain that if we suspend your benefits because you fail to cooperate and you subsequently give us the information that we requested, we will reinstate your benefits and continue with the CDR process. We will reinstate your benefits for any previous months for which they are otherwise payable. As noted above, as a result of a public comment, we have reordered the phrases in the final regulation § 404.1596(d) to make them consistent with § 404.1587(b).

With respect to the new § 404.1596(e), we explain that if we suspend your benefits because you do not give us the information that we need and you fail to respond during the subsequent 12-month period, we will terminate your benefits. The termination will be effective with the start of the 13th month after your benefits were stopped because you failed to cooperate. You will have the right to appeal the termination, but you will not have benefit continuation rights.

We are adding a new § 416.992 to explain that we will suspend your payments before we make a determination regarding your continuing eligibility for disability payments if you fail to comply with our request for information for your CDR or age-18 redetermination. We will suspend your payments only after we give you advance notice as described in § 416.995. As outlined in § 416.1336 of our regulations, the advance notice will tell you what you need to do so that your payments are not suspended. If we suspend your payments because you fail to cooperate and you subsequently give us the information that we requested, we will reinstate your payments and continue with the CDR or age-18 redetermination process. We will reinstate your payments for any previous month for which they are otherwise payable. If we suspend your payments because you do not give us the information that we need and you fail to respond during the subsequent 12-month period, we will terminate your payments. The termination will be effective with the start of the 13th month after your payments were stopped because you failed to cooperate. You will have the right to appeal the termination, but you will not have payment continuation rights.

In response to a public comment, the regulatory language in this final rule has been changed from the language that appeared in the proposed rules. We have revised the language in the final regulation § 416.992 to reflect that payments will only be suspended if good cause has not been established. This is consistent with the language in the final regulation § 404.1587(b). We have also reordered the phrases in final regulation § 416.992 to make them consistent with §§ 404.1587(b) and 404.1596(d).

We published these regulatory provisions in the Federal Register as a NPRM on December 5, 2005 (70 FR 72416). We provided the public with a 60-day comment period. We received comments from 10 individuals and 11 organizations. Because some of the comments submitted were detailed, we have tried to summarize or paraphrase the views presented in these comments accurately and to respond to the significant issues raised in the comments that were within the scope of the proposed rules.

Comment: Several commenters stated that they disagreed with the proposed rule changes because of the potential for problems with the delivery of mail. The commenters said that we should be mindful of the widespread deficiencies in mail delivery.

Response: We will exhaust all efforts to locate the beneficiary/payee and follow-up on all requests for information before deciding to suspend benefits. To ensure that we have made every reasonable effort to contact the beneficiary/payee, we will attempt to secure the most current address from the Post Office, financial institutions, etc. If we suspend an individual's benefits he or she will only have to contact his or her local Social Security office and provide the requested information within the 12 month period to have his or her benefits resumed.

Comment: Along the same lines, one commenter related an incident in which her benefits had been terminated because the Postal Service was unable to locate her, despite residing at the same address for 13 years. The commenter suggested that all correspondences relating to requests for information should be sent via certified mail.

Response: We did not need to make any changes in these final rules as a result of this comment. If a beneficiary fails to respond to our initial notice, our procedures require that we send a certified letter to a beneficiary's address of record prior to initiating a suspension action.

Comment: One commenter expressed a view that individuals who have developmental or mental health diagnoses may not be able to read and understand the information that we send to them. The commenter said that this proposal may impose a hardship on these individuals and go against the intent of the Act.

Response: In all situations, we are sensitive to circumstances in which an individual, including those individuals who have developmental or mental health diagnoses, may require assistance to comply with our requests. We will consider the individual's impairment and use all available resources to obtain needed information, and if necessary, determine whether a representative payee or change of representative payee is needed.

Comment: Several commenters stated that they did not support our proposed rule changes because of the potential for misunderstandings about information being requested and vaguely worded notices. The commenters also stated that they did not support our proposed rule changes because of the potential for representative payees not fulfilling their reporting responsibilities. The commenters urged us to ensure that policies are in place to make certain that individuals continue to receive the benefits to which they are entitled prior to implementation of these final regulations.

Response: As we stated above, we are sensitive to situations in which an individual may require assistance to comply with our requests. When appropriate, we will consider the beneficiary's capability and/or consider the need for a new payee. Before suspending benefits, we will send a notice that clearly explains that benefits will be suspended if the beneficiary/payee does not provide the necessary information. If we suspend an individual's benefits he or she will only have to contact his or her local Social Security office and provide the requested information within the 12 month period to have his or her benefits resumed.

Comment: One commenter recommended that we send requests for information to the representative payee, an automatic reinstatement provision be provided when the beneficiary/payee provides the necessary information, and include a place on the form for the individual to state they do not understand a question or need assistance in filling out the form.

Response: These final rules do not change our regulations on the use of representative payees. If a beneficiary has a representative payee, it is our policy to send all notices to the payee. Additionally, as soon as the beneficiary/payee provides the requested information, benefits will be reinstated, including any previous month for which they are otherwise payable. The beneficiary/payee will not have to request that benefits be reinstated. The form that an individual must complete during a CDR includes a remarks section where the individual can indicate that he or she does not understand a question or needs assistance completing the form. In addition, the letter that advises the individual that a CDR is being done also advises the individual that he or she may contact us at any time if he or she has any questions or requires assistance.

Comment: One commenter applauded our decision to suspend rather than terminate benefits when a beneficiary fails to cooperate during a CDR and urged that we continue the existing policy that benefits be continued when despite a lack of cooperation the evidence establishes continued eligibility.

Response: We are not changing our existing policy that benefits be continued when despite a lack of cooperation, evidence establishes continued eligibility.

Comment: Several commenters stated that the proposed language of §§ 404.1587, 404.1596 and 416.992, “we will continue with the CDR process and reinstate your benefits for any month for which they are otherwise payable” should be reordered to make clear that benefits will be restored immediately upon the individual's cooperation with us. The commenters further stated that the “without good cause” language that appeared in §§ 404.1587 and 404.1596 in the proposed rules did not appear in the regulatory language in § 416.992 in the proposed rules and should be corrected in the final regulations. The commenters also suggested that the regulations should spell out what constitutes “good cause” in the situation where a person fails to cooperate with a CDR or an age-18 redetermination.

Response: We agree that the order of the language that appeared in the regulatory section of the proposed rules might be misread. We have reordered the phrases in §§ 404.1587, 404.1596, and 416.992 by changing the language to state that “when we have received the information, we will reinstate your benefits for any previous month for which they are otherwise payable, and continue with the CDR process.” Also, we have rewritten § 416.992 to include the reference to the regulatory language “without good cause” to make it consistent with §§ 404.1587 and 404.1596, since it was inadvertently omitted. For clarity when referring to “good cause,” we are adding a parenthetical to the final rules referencing the “good cause” citations (§§ 404.911 and 416.1411) in the regulatory text of §§ 404.1587(b), 404.1596(d), and 416.992, as appropriate.

Comment: The same commenters also stated that the regulations should include specific statements that we will meet with the individual on the day he or she first visits the Social Security office to report that he or she did not receive the monthly check. Also, the commenters stated that the final regulations should note that we will assist those who need extra help and that such provision, among others, is required by our obligation under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).

Response: We have not rewritten these sections to include specific statements that we will meet with the individuals on the day he or she first visits a Social Security office or to assist individuals who need extra help because it is already our policy to do so. Further, we comply with all applicable laws relating to our programs to ensure maximum accessibility of all our programs and proceedings. If a beneficiary contacts one of our field offices with the necessary information, the field office will meet with them and take action to reinstate their benefits.

Comment: One commenter suggested that if benefits are suspended for non-cooperation, benefits should be reinstated only if the information subsequently provided demonstrates that the beneficiary is still disabled.

Response: We did not adopt this comment. The purpose of these final rule changes is to implement a more efficient CDR process and to encourage beneficiaries to cooperate during the CDR process. Accordingly, if the beneficiary provides us with the necessary information or evidence requested, benefits will be reinstated. We will then continue with the CDR process.

We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under E.O. 12866, as amended by E.O. 13258. Thus, they were reviewed by OMB.

We certify that these final rules will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

These final regulations impose no reporting or recordkeeping requirements requiring OMB clearance.

The CSA and its implementing regulations, specifically 21 U.S.C. 802(35) and 21 CFR 1310.02(c), provide the Attorney General with the authority to specify, by regulation, additional chemicals as “List II” chemicals if they are used in the manufacture of a controlled substance in violation of the CSA. This authority has been delegated to the Administrator, Drug Enforcement Administration (DEA) by 28 CFR 0.100 and redelegated to the Deputy Administrator under 28 CFR 0.104 (Subpart R) Appendix section 12.

On March 1, 2005, the DEA published a Notice of Proposed Rulemaking (70 FR 9889) which proposed the addition of sodium permanganate as a List II chemical because of its direct substitutability for potassium permanganate (a List II chemical) in the illicit production of cocaine. Additionally, the Notice of Public Rule Making (NPRM) proposed that a threshold of 55 kilograms and 500 kilograms be established (respectively) for domestic and international transactions.

DEA also proposed that chemical mixtures (containing sodium permanganate) having less than or equal to 15 percent sodium permanganate shall qualify for automatic exemption from CSA chemical regulatory controls pursuant to 21 CFR Part 1310. Since DEA recognizes that the concentration limit exemption criteria cannot identify all mixtures that should receive exemption status, DEA has implemented an application process to exempt additional mixtures (21 CFR 1310.13). This application process was finalized in a Final Rule published in the Federal Register May 1, 2003 (68 FR 23195). Under the application process, manufacturers may submit an application for exemption for those mixtures that do not qualify for automatic exemption. Exemption status can be granted if DEA determines that the mixture is formulated in such a way that it cannot be easily used in the illicit production of a controlled substance and the listed chemical cannot be readily recovered ( i.e. , it meets the conditions in 21 U.S.C. 802(39)(A)(v)). An application may be for a single or a multiple number of formulations.

Sodium permanganate is an inorganic oxidant that is a direct substitute for potassium permanganate. Due to its high solubility in water, sodium permanganate has distinct advantages over potassium permanganate in many industrial applications. It is becoming widely used for industrial purposes, including (1) Printed circuit board production, (2) pharmaceutical and chemical synthesis, (3) soil and groundwater remediation, (4) metal cleaning formulations, (5) acid mine drainage and (6) hydrogen sulfide odor control.

DEA has identified only one domestic producer of sodium permanganate. However, sodium permanganate is also imported into the United States (U.S.) and there are at least three other major suppliers of sodium permanganate in the U.S.

The U.S. firm that manufactures sodium permanganate distributes it through 15-20 major authorized distributors and more than 100 branch distributors. This U.S. supplier has advised DEA that it is aware of “one [sodium permanganate] manufacturer in Germany, more than one manufacturer in China and at least nine suppliers in other countries.”

Sodium permanganate is directly substitutable for potassium permanganate, an important List II chemical used illicitly in the production of cocaine. Potassium permanganate is widely used as an oxidizing agent for removing impurities from coca base in the illicit production of cocaine. Potassium permanganate is utilized because it produces an aesthetically pleasing, white, crystalline form of cocaine hydrochloride, which is easily marketed.

Because of its importance in cocaine production, potassium permanganate has been the target of international cooperative efforts to monitor potassium permanganate shipments and prevent its diversion. This effort remains an international priority involving the competent authorities of 22 countries.

Recently, the world's largest producer of potassium permanganate (a U.S. company) informed DEA of its recent conversion of production processes away from potassium permanganate and toward the increased production and distribution of sodium permanganate. Because of sodium permanganate's direct substitutability for potassium permanganate, this company has agreed with DEA concerns regarding the potential illicit use of sodium permanganate as a direct substitute for potassium permanganate in cocaine processing. This producer advised DEA that it would welcome the control of sodium permanganate as a listed chemical.

Even though production of sodium permanganate has historically been limited, sodium permanganate has been seized by law enforcement at illicit cocaine laboratories in Latin America. As reported in the 2001 and 2002 Statistical Summary on Drugs, compiled by the Organization of American States (OAS), and the Inter-American Drug Abuse Control Commission (CICAD), the Government of Colombia (as reported by the Colombian Ministerio de Justicia y del Derecho, Direccion Nacional de Estupefacientes) reported the seizure of 1,400 kilograms of sodium permanganate in 1997, 236 kilograms in 1998 and 404 kilograms in 1999.

Because of its direct substitutability for potassium permanganate and increased production, DEA sees the urgent need to regulate sodium permanganate as a List II chemical to prevent its diversion to cocaine laboratories. Hence, this rulemaking subjects sodium permanganate to the same CSA regulatory controls which have been put forth for potassium permanganate. As such, sodium permanganate shall be subject to List II chemical controls, including recordkeeping, reporting, and import/export requirements as specified in 21 CFR Parts 1310 and 1313.

In response to the March 1, 2005, NPRM, DEA received four comments. One commenter simply stated that they supported the control of sodium permanganate as a List II chemical.

Another commenter stated that they disagreed with the exemption of chemical mixtures containing less than 15 percent sodium permanganate, but did not provide any supportive reason for their opposition.

Two comments addressed the issue of the establishment of a domestic threshold of 55 kilograms for domestic transactions. One commenter stated that the threshold was too high and instead suggested that DEA establish a domestic threshold of 5 kilograms. Another commenter stated that they believed the 55 kilogram threshold was too low, and stated that they believed it would increase the recordkeeping burden on wastewater treatment facilities.

DEA believes, however, that the threshold of 55 kilograms for domestic transactions will not impact these wastewater treatment facilities because these facilities are end-users. As such, they are not required to maintain records and therefore do not incur any regulatory burden. Their suppliers, however, must maintain records of all distributions greater than 55 kilograms.

Furthermore, DEA believes that the 55 kilogram threshold for domestic transactions is appropriate, since this is the threshold that currently exists for potassium permanganate (which is the direct substitute for sodium permanganate in these industries.)

One comment was received from the sole U.S. producer of sodium permanganate. The company stated that it supports DEA's proposal to control sodium permanganate as a List II chemical. The company further stated that controls on sodium permanganate should be exactly the same as the controls which currently exist on potassium permanganate. DEA agrees.

After careful consideration of all comments, DEA has determined that all control provisions as proposed in the March 1, 2005, NPRM (70 FR 9889) shall become final. As such, the exact regulatory controls which currently apply to potassium permanganate shall be implemented for sodium permanganate effective December 18, 2006.

As a List II chemical, sodium permanganate shall be subject to the chemical regulatory control provisions and civil and criminal sanctions of the CSA. As such, recordkeeping, reporting and import/export notification requirements (as described in 21 CFR Parts 1310 and 1313) shall apply. As a List II chemical, manufacturers, distributors, importers and exporters of sodium permanganate will not be required to register with DEA pursuant to the provisions of 21 CFR Part 1309.

Handlers of this chemical shall be required to maintain records and meet CSA import/export notification requirements for “regulated transactions” involving sodium permanganate. The CSA (21 U.S.C. 802(39)) defines the term “regulated transaction” as a “distribution, receipt, sale, importation, or exportation of, or an international transaction involving the shipment of, a listed chemical, or if the Attorney General establishes a threshold amount for a specific listed chemical,” a transaction involving a threshold amount. The CSA, therefore, provides the Attorney General with authority to establish a threshold amount for listed chemicals if the Attorney General so elects.

DEA is establishing a threshold of 55 kilograms for domestic transactions and 500 kilograms for international transactions. Consequently, all transactions which meet or exceed these threshold quantities shall be considered regulated transactions and be subject to recordkeeping, reporting and import/export notification requirements of the CSA.

Records and Reports. The CSA (21 U.S.C. 830) requires certain records to be kept and reports to be made involving listed chemicals. Regulations describing recordkeeping and reporting requirements are set forth in 21 CFR Part 1310. A record must be made and maintained for two years after the date of a regulated transaction involving a List II chemical. Only a distribution, receipt, sale, importation, or exportation of a regulated mixture at or above the established threshold ( e.g. 55 kilograms for domestic transactions and 500 kilograms for international transactions) is a regulated transaction (21 CFR 1300.02(b)(28)).

Each regulated bulk manufacturer of a regulated mixture shall submit manufacturing, inventory and use data on an annual basis (21 CFR 1310.05(d)). Bulk manufacturers producing the mixture solely for internal consumption, e.g. , formulating a non-regulated mixture, are not required to submit this information. Existing standard industry reports containing the required information are acceptable, provided the information is readily retrievable from the report.

21 CFR 1310.05 requires that each regulated person shall report to DEA any regulated transaction involving an extraordinary quantity, an uncommon method of payment or delivery, or any other circumstance that causes the regulated person to believe that the listed chemical will be used in violation of the CSA.

Imports/Exports. All import/exports and brokered transactions of regulated mixtures shall comply with the CSA (21 U.S.C. 957 and 971). Regulations for importation and exportation of listed chemicals are described in 21 CFR Part 1313.

Administrative Inspection. Places, including factories, warehouses, or other establishments and conveyances, where regulated persons may lawfully hold, manufacture, or distribute, dispense, administer, or otherwise dispose of a listed chemical or where records relating to those activities are maintained, are controlled premises as defined in 21 CFR 1316.02(c). The CSA (21 U.S.C. 880) allows for administrative inspections of these controlled premises as provided in 21 CFR Part 1316, Subpart A.

Effective December 18, 2006, a chemical mixture that is regulated because it contains greater than 15 percent sodium permanganate will be treated as a List II chemical. Transactions that meet or exceed the cumulative monthly threshold of 55 kilograms for domestic transactions and 500 kilograms for international transactions shall be regulated transactions.

The regulatory requirements for regulated chemical mixtures containing List II chemicals are the same as for regulated chemical mixtures containing List I chemicals, except that registration requirements do not apply. Therefore, the same requirements for records and reports, imports/exports (except that pertaining to 21 U.S.C. 957), and administrative inspection, as outlined above, apply to handlers of List II regulated chemical mixtures.

Persons who submit an application for exemption (21 CFR 1310.13) and whose application is pending or subsequently denied by DEA shall be required to comply with all chemical control requirements, including recordkeeping and reporting, effective December 18, 2006. Therefore, all transactions of the chemical mixture would be regulated, if above threshold, while an application for exemption is pending or awaiting correction. This is necessary because not regulating these transactions could result in increased diversion of chemicals desirable to cocaine traffickers.

In an effort to better estimate the potential impact of this action, DEA conducted an analysis of various data sources relating to the manufacture, distribution, and use of the permanganates. This included an analysis of current chemical producers and marketing directories (to identify companies listing themselves as sources of these chemicals).

As previously stated in the NPRM, the DEA has identified only a limited number of companies which distribute sodium permanganate which has been either domestically produced or imported. While sodium permanganate has industrial uses, DEA has not been able to identify any ‘household' uses for this chemical. Therefore, the number of firms that are likely to be affected by this proposed regulation is relatively small.

This final rulemaking is not considered to have an impact upon a substantial number of firms, given the limited distribution of this chemical. Additionally, it is likely that the CSA recordkeeping requirements are already being met as part of normal business practice. Since sodium permanganate is being added as a List II chemical there is no registration requirement. Additionally, DEA is establishing a cumulative threshold of 55 kilograms for domestic transactions and 500 kilograms for international transactions. Therefore, small transactions involving research quantities of sodium permanganate will not be subject to regulatory requirements.

The Deputy Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation, and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. As noted previously, this rulemaking is not considered to have an impact upon a substantial number of firms, given the limited distribution of this chemical. Further, this impact is being limited by the fact that DEA is adding sodium permanganate as a List II chemical, rather than the more stringent requirements of a List I chemical. Additionally, it is likely that the CSA recordkeeping requirements are already being met as part of normal business practice. The cumulative threshold of 55 kilograms for domestic transactions and 500 kilograms for international transactions established here would remove from regulatory control small transactions involving research quantities of sodium permanganate.

The Deputy Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 section 1(b). It has been determined that this is a “significant regulatory action”. Therefore, this action has been reviewed by the Office of Management and Budget. DEA has identified only one U.S. firm which manufactures sodium permanganate. This firm supports control of sodium permanganate as a List II chemical.

This rulemaking adds sodium permanganate as a List II chemical under the CSA. As a List II chemical, there is no requirement of registration to handle this chemical. Further, as most persons who handle this product are end-users and, as such, are not required to maintain records or file reports, there is no impact on these persons.

Handlers of sodium permanganate that distribute above threshold quantities are required to maintain records. Normal business records are deemed adequate if they contain the information required in 21 CFR 1310.06. As normal business records meet DEA's regulatory requirements, the maintenance of these records does not fall under the parameters of the Paperwork Reduction Act. Further, persons importing and exporting this List II chemical in quantities of greater than 500 kilograms, cumulatively, per month, must provide DEA with advance notification of these transactions. As DEA does not have any information on which to base an estimate of the impact of this new reporting requirement for persons importing or exporting sodium permanganate in quantities greater than 500 kilograms, cumulatively, per month, DEA will adjust the burden related to this information collection (OMB control number 1117-0023 “Import/Export Declaration: Precursor and Essential Chemicals”) upon its renewal.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.

This rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $115,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $114,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The notice of final regulations (TD 9274) that is the subject of these corrections is under section 6103(k)(6) of the Internal Revenue Code.

As published, TD 9274 contains errors that may prove to be misleading and are in need of clarification.

This document contains amendments to the Regulations on Procedure and Administration (26 CFR part 301) relating to the provision of notice under section 6330 of the Internal Revenue Code to taxpayers of a right to a CDP hearing (CDP Notice) before or, in limited cases, after levy. Final regulations (TD 8980) were published on January 18, 2002, in the Federal Register (67 FR 2549) (the 2002 final regulations). The 2002 final regulations implemented certain changes made by section 3401 of the Internal Revenue Service Restructuring and Reform Act of 1998 (Pub. L. 105-206, 112 Stat. 685)(RRA 1998), including the addition of section 6330 to the Internal Revenue Code.

Section 3401 of RRA 1998 also added section 6320 to the Internal Revenue Code. That statute provides for notice to taxpayers of a right to a hearing after the filing of a notice of Federal tax lien (NFTL). A number of the provisions in section 6330 concerning the conduct and judicial review of a CDP hearing are incorporated by reference in section 6320. On January 18, 2002, final regulations (TD 8979) under section 6320 were published in the Federal Register (67 FR 2558) along with the 2002 final regulations under section 6330.

On September 16, 2005, the IRS and the Treasury Department published in the Federal Register (70 FR 54687) a notice of proposed rulemaking and notice of public hearing (REG-150091-02). The IRS received one set of written comments responding to the notice of proposed rulemaking. Because no one requested to speak at the public hearing, the hearing was cancelled. After considering each of the comments, the proposed regulations are adopted as amended by this Treasury decision.

On August 17, 2006, the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780 (the PPA), was enacted. Section 855 of the PPA amended section 6330(d) of the Internal Revenue Code to withdraw judicial review of CDP notices of determination from United States district court jurisdiction, leaving review solely in the United States Tax Court. This amendment to section 6330(d), effective for notices of determination issued on or after October 17, 2006, requires the removal of references to district court review in the 2002 final regulations. This Treasury decision removes those references.

The IRS and the Treasury Department have determined that a notice of proposed rulemaking and solicitation of public comments are not required to amend the regulations to implement the modification to section 6330(d). These amendments are made solely to conform the regulations to a statutory change enacted by Congress. Because the amendments do not involve any exercise of discretion or interpretation, the notice and public comment procedures are unnecessary.

The comments and changes to the proposed regulations, and the amendments required by the Congressional modification to section 6330(d), are discussed below.

The comments suggested that the IRS be required to contact taxpayers who timely file an incomplete request for CDP hearing to give them the opportunity to perfect the request within a reasonable time period and further recommended that such contact be in writing and identify the infirmity requiring perfection. The comments also recommended that the final regulations establish a specific time period during which taxpayers may, by right, amend or perfect their previously-filed yet incomplete CDP hearing request. The request, according to the comments, should be considered timely if it is perfected within the applicable time period.

Currently, the practice of the IRS is to contact taxpayers whose hearing requests fail to satisfy the requirements specified by the existing regulations and ask these taxpayers to perfect their requests within a specified period of time. The IRS considers requests perfected within the time specified to be timely. The intention of the IRS and the Treasury Department is to incorporate this administrative procedure into the proposed regulations. The final regulations more clearly state that the IRS will make a reasonable attempt to contact taxpayers to give them a reasonable period of time to perfect incomplete requests. However, the timeframe in which to respond to the request, and the method of delivery of the request (i.e., orally or in writing) are more appropriately addressed in the Internal Revenue Manual. The final regulations make clear that requests perfected within the time period specified by the IRS will be considered timely.

The final regulations do not adopt the suggestion to establish a period of time during which a taxpayer is allowed to perfect an incomplete request, without regard to a perfection request from the IRS. The IRS and Treasury Department believe that the procedure incorporated into the final regulations is sufficient to permit taxpayers to ensure their requests are complete.

The comments recommended that the IRS Office of Appeals (Appeals) be given the discretion to permit a taxpayer to amend an imperfect hearing request after the period for perfecting the request has expired, if the taxpayer can demonstrate that such amendment furthers an alternative to collection. This change to the regulations is unnecessary because Appeals is already empowered to exercise this discretion. Neither the current regulations nor the proposed amendments limits Appeals from exercising this discretion. Accordingly, the final regulations do not adopt this recommendation. Further clarification, however, will be provided in the Internal Revenue Manual.

The comments suggested that where a taxpayer fails to perfect a CDP hearing request until after the time period specified by the IRS, the perfected request should be automatically treated as a request for an equivalent hearing. Treating untimely perfected requests as equivalent hearing requests may unduly prolong the process in cases in which a taxpayer does not want an equivalent hearing. Accordingly, the final regulations do not adopt this suggestion. The final regulations, however, provide that Appeals will determine the timeliness of CDP hearing requests. The final regulations also add to the proposed regulations that taxpayers making an untimely request will be provided the opportunity to have the request for CDP hearing treated as a request for equivalent hearing, without submitting an additional request.

The comments requested that the final regulations give taxpayers whose hearing requests might be construed as making a frivolous argument the right to amend their hearing requests to raise relevant, non-frivolous issues. The comments further recommended that all taxpayers be given the right to supplement the hearing request prior to the conference conducted by Appeals.

These comments indicate concern that taxpayers may be unable to articulate reasons for disagreeing with the collection action that are satisfactory to Appeals. The reasons for disagreeing with the collection action need not be detailed. To assist taxpayers in articulating reasons, the IRS is revising Form 12153, “Request for a Collection Due Process Hearing,” to add examples of the most common reasons taxpayers give for requesting a hearing, including requests for collection alternatives. In any event, the informal nature of the CDP hearing permits taxpayers and Appeals to discuss collection alternatives and issues not listed in the hearing request if such discussion will help resolve the case. Accordingly, the final regulations do not adopt these recommendations.

The comments urged that the final regulations guarantee a face-to-face conference for each taxpayer who presents a relevant, non-frivolous reason for disagreement with the collection action. If this recommendation is not adopted, the comments suggest that the regulations address and provide examples of when a face-to-face conference will not be granted. The final regulations do not adopt the recommendation to guarantee a face-to-face conference for each taxpayer raising a relevant, non-frivolous issue. The IRS and the Treasury Department agree with the comments that a face-to-face conference can be a useful forum for resolving a taxpayer's issues. The final regulations recognize the importance of a face-to-face meeting by providing that taxpayers will ordinarily be offered an opportunity for a face-to-face conference. There will be instances, however, when a face-to-face conference is not practical. The final regulations identify typical situations in which a face-to-face conference will be neither necessary nor productive. Except for these situations, the IRS and the Treasury Department anticipate that Appeals will afford a face-to-face meeting to taxpayers who request one. Nonetheless, unanticipated circumstances may arise in which granting a face-to-face conference will not be appropriate. The final regulations give Appeals the flexibility needed to respond to unanticipated circumstances.

Adoption of the comment requesting guidance on when a face-to-face conference will not be granted is unnecessary. The final regulations retain descriptions of situations in which a face-to-face conference will not be granted, as illustrated in the proposed regulations. Further guidance on granting face-to-face conferences will be provided in the Internal Revenue Manual.

The comments suggested that a taxpayer who appears to be presenting only frivolous reasons be given an opportunity to provide relevant, non-frivolous reasons in order to obtain a face-to-face conference. Adoption of this recommendation is unnecessary. Correspondence sent by Appeals to taxpayers who make only frivolous arguments invites them to submit relevant, non-frivolous reasons. Appeals offers face-to-face conferences to taxpayers who respond by providing such reasons.

The comments also suggested that the regulations define relevant and frivolous. The IRS and the Treasury Department believe that any attempt to define these terms is unnecessary and could result in underinclusive definitions. For example, the comments suggest that a frivolous issue be defined as an issue that is the same or substantially similar to an issue identified as frivolous by the IRS in published guidance. It is not possible to anticipate or keep pace with the evolution of frivolous arguments through published guidance. Instead, taxpayers are advised to consult the lists of examples of frivolous arguments in IRS Publication 2105, “Why Do I Have to Pay Taxes” and on the IRS Web site in a document entitled “The Truth about Frivolous Tax Arguments.” The names and Web addresses of these documents, and a toll-free number to order Publication 2105, will be added to the instructions to Form 12153 to help taxpayers avoid making these arguments.

The comments recommended clarification of the proposed rule that a face-to-face conference concerning a collection alternative will not be granted unless the alternative would be available to other taxpayers in similar circumstances. According to the comments, a taxpayer should not be denied a face-to-face conference because the requested collection alternative cannot be accepted, for example, because it appears from financial information that the taxpayer can pay the liabilities in full. This proposed rule was not intended to deny a face-to-face conference because the requested collection alternative would not be accepted. The intention of this rule is to permit the denial of a face-to-face conference to discuss a collection alternative for which the taxpayer is not eligible. A lack of eligibility under IRS policy is tied to a taxpayer's compliance with the Federal tax laws, not to the taxpayer's financial circumstances or ability to request the most appropriate alternative. For example, if the taxpayer has not filed all required tax returns, the taxpayer is not eligible for an offer to compromise or an installment agreement.

In response to the concerns expressed in the comments, the final regulations amplify the rule that a face-to-face conference to discuss a collection alternative will not be granted unless other taxpayers would be eligible for the alternative in similar circumstances. The final regulations provide in A-D8 that Appeals in its discretion may grant a face-to-face conference if Appeals determines that a face-to-face conference is appropriate to explain to the taxpayer the requirements for becoming eligible for a collection alternative. The final regulations also provide that taxpayers will be given an opportunity to demonstrate they are eligible for a collection alternative in order to obtain a face-to-face conference to discuss the alternative. Taxpayers will also be given an opportunity to become eligible for a collection alternative in order to obtain a face-to-face conference. For example, under the final regulations, if a taxpayer appears to have failed to file all required returns (and thus appears not to be eligible for an offer to compromise or an installment agreement), the taxpayer will be given an opportunity to demonstrate the inapplicability of the filing requirements or to file delinquent returns, in order to obtain a face-to-face conference. The final regulations further provide that a taxpayer's eligibility for a collection alternative does not include the taxpayer's ability to pay the unpaid tax.

The comments expressed concern that the amendment providing a face-to-face conference at an Appeals office other than an office in which all officers or employees had prior involvement could be construed as giving Appeals the discretion to deny a face-to-face conference even if the taxpayer would have been granted a face-to-face conference at the original location. The relevant sentence in A-D8 in the final regulations has been rewritten to make clear that Appeals does not have discretion to deny a face-to-face conference at an alternate location if the taxpayer would have been granted a face-to-face conference but for the disqualification of the Appeals employees at the original location.

The comments suggested that the regulations permit face-to-face conferences to be held not only at the Appeals office closest to the taxpayer's residence or, for a business taxpayer, the taxpayer's principal place of business, but also at the Appeals office closest to the taxpayer's school or place of employment, the authorized representative's place of business, or some other location convenient to the taxpayer or the taxpayer's representative. The IRS and Treasury Department believe the rules for CDP hearings should be consistent with the treatment of other proceedings in Appeals. The long-standing practice of Appeals in cases not docketed in the Tax Court is to grant face-to-face conferences in the Appeals office closest to the taxpayer's residence or principal place of business. The practice is retained in the final regulations. Appeals will, however, attempt to accommodate reasonable requests to hold the face-to-face conference at an Appeals office more convenient to the taxpayer.

The comments expressed concern that the definition of prior involvement under section 6320(b)(3) or 6330(b)(3) in the proposed regulations could be construed too narrowly in two ways. First, the definition of prior involvement as involvement in a prior hearing or proceeding could be read to exclude involvement in some informal settings, e.g., the Appeals officer's participation in a mediation session. In order to clarify that no such limitation is intended, the final regulations substitute matter for hearing or proceeding in A-D4 of paragraph (d)(2). Second, defining prior involvement to exist when the Appeals officer previously considered the same tax liability could be construed as excluding from the definition instances in which the Appeals officer previously considered questions bearing only on collection issues. The final regulations adopt the suggestion in the comments to remove the word liability in A-D4 in order to eliminate the potential interpretation that there is a distinction between liability and collection issues in determining prior involvement.

The comments also requested that a mediation example be added to paragraph (d)(3). The IRS and the Treasury Department believe that the change made to A-D4 adequately clarifies the definition of prior involvement. This example and others will be added to the Internal Revenue Manual to ensure the proper administration of sections 6320(b)(3) and 6330(b)(3).

The comments recommended that the regulations address the treatment of ex parte communications during CDP hearings. The rules applicable to ex parte communications during CDP hearings and other Appeals proceedings are provided in Rev. Proc. 2000-43, 2000-43 I.R.B. 404. Therefore, these rules are not duplicated in the regulations under sections 6320 and 6330.

The comments recommended that the regulations be amended to provide that self-reported tax liabilities may be disputed in a CDP hearing. The final regulations adopt this recommendation. See also Montgomery v. Commissioner , 122 T.C. 1 (2004), acq. 2005-51 I.R.B. 1152.

The comments also requested changes in the existing regulations' interpretation of preclusive events under section 6330(c)(2)(B). Under section 6330(c)(2)(B), during a CDP hearing, a taxpayer may challenge the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability. According to the comments, the only opportunity to dispute the tax liability that is sufficient to prevent the taxpayer from challenging the liability in a CDP hearing is the prior opportunity to dispute the liability in a judicial forum. The IRS and the Treasury Department believe that the existing regulations correctly include an opportunity for an Appeals conference as a preclusive prior opportunity. The text of section 6330(c)(2)(B) does not contain language limiting prior opportunities to judicial proceedings. Moreover, it is consistent for a taxpayer who has had an opportunity to obtain a determination of liability by Appeals in one administrative hearing to be precluded from obtaining an Appeals determination in a subsequent CDP administrative hearing with respect to the same liability. This interpretation of section 6330(c)(2)(B) has been upheld by the courts. See, e.g., Pelliccio v. United States , 253 F. Supp. 2d 258, 261-62 (D. Conn. 2003). Accordingly, the final regulations do not adopt this suggestion.

Alternatively, the comments recommended that the regulations specify that a pre-CDP Appeals conference is not a prior opportunity to dispute liability under section 6330(c)(2)(B) if the receipt of the conference was conditioned upon the taxpayer's agreement to extend the assessment statute of limitations with respect to the liability and the taxpayer declined to extend the statute. The IRS and Treasury Department believe this addition is unnecessary. For taxes subject to deficiency procedures, the relevant, pre-assessment “prior opportunity” is the receipt of the notice of deficiency. The offer of an Appeals conference prior to receipt of the notice of deficiency does not constitute an opportunity to dispute the liability under section 6330(c)(2)(B). This interpretation of section 6330(c)(2)(B) has been added to paragraph (e)(3) A-E2 to remove any uncertainty about this matter. For liabilities not subject to deficiency procedures, the offer of an Appeals conference prior to assessment constitutes an opportunity to dispute the liability under section 6330(c)(2)(B). Appeals conferences to consider these types of liabilities are rarely conditioned upon an extension of the assessment statute of limitations. The IRS generally makes conditional offers of a conference only when a taxpayer makes an untimely request for review of a proposed Trust Fund Recovery Penalty pursuant to a Letter 1153 and less than one year remains on the assessment statute of limitations. In this circumstance, however, the opportunity for an Appeals conference offered in the Letter 1153 constitutes the opportunity to dispute the liability under section 6330(c)(2)(B). The conditional offer made after the expiration of the prior opportunity provided in the Letter 1153 is irrelevant. For these reasons, the final regulations do not adopt this comment.

The comments objected to the addition of a definition of administrative record to the regulations as an attempt to overrule the Tax Court's decision in Robinette v. Commissioner, 123 T.C. 85 (2004), rev'd, 439 F.3d 455 (8th Cir. 2006). The assumption that Robinette eliminated any role for an administrative record in CDP court proceedings is not supported by the Court's opinion. While the Tax Court held in Robinette that it was not required to limit its abuse-of-discretion review to the administrative record, it did not reject the utility of an administrative record. Subsequent to the submission of the comments, the United States Court of Appeals for the Eighth Circuit reversed the Tax Court and held that abuse-of-discretion review in CDP cases is limited to the administrative record. Robinette v. Commissioner, 439 F.3d 455 (8th Cir. 2006). For these reasons, it is important that taxpayers and the IRS have a common understanding of the scope of the administrative record. The definition is retained in the final regulations.

The comments suggested that the proposed definition of the administrative record permits Appeals officers and employees to exclude from the record for judicial review issues, arguments, and evidence presented orally by the taxpayer, and to exclude written communications and documents. The administrative record definition is not intended to suggest that the reviewing court is not permitted to determine the contents of the administrative record or the record's adequacy in an individual case. The reviewing court has the authority to receive evidence concerning what happened during the CDP hearing. The definition is provided to establish for the benefit of the IRS and taxpayers a baseline description of what each administrative record should contain to ensure a record sufficient for judicial review. The final regulations have not been changed in this regard. The final regulations, however, adopt the suggestion that the description of the case file in A-D7 and in the definition of administrative record in A-F6 of the proposed regulations (redesignated as A-F4 in the final regulations) be made consistent.

The comments recommended that the final regulations require each Appeals officer to include in the notice of determination a list of the documents the Appeals officer believes are included in the administrative record. The justification for this proposed requirement is that the list would assist the taxpayer in deciding whether to seek judicial review. The list of documents, according to the comments, will also assist the court and taxpayers seeking review to more efficiently ascertain whether there was an abuse of discretion.

The final regulations do not adopt this recommendation. Requiring Appeals officers to prepare a list of documents constituting the administrative record in each of the thousands of cases handled each year would impose a heavy burden on Appeals without a commensurate benefit to taxpayers. The notice of determination issued in each case describes the facts and reasons supporting the Appeals officer's determination and should provide an adequate basis for the taxpayer's decision whether to seek judicial review.

The IRS and the Treasury Department acknowledge that disputes have arisen with respect to the contents of the administrative record in CDP cases and that there are no special rules in place to resolve these disputes. An appropriate solution could involve the Tax Court's development of rules governing the preparation and submission of the administrative record for abuse-of-discretion review, particularly now that the recently-enacted Pension Protection Act of 2006 requires all CDP cases to be litigated in the Tax Court.

The comments suggested removal of the limitation in the existing regulations that a taxpayer is precluded from obtaining judicial review of an issue not raised with Appeals during the CDP hearing. As an alternative, the comments recommended that a taxpayer only be prevented from raising those issues the taxpayer could have, but failed to raise during the CDP hearing. The limitation in the existing regulations implements a basic principle of administrative law that those seeking review of an issue must first give the agency the opportunity to evaluate and respond to the issue. This limitation has been upheld in the courts. See Robinette v. Commissioner, 123 T.C. 85, 101-102 (2004), rev'd on other grounds, 439 F.3d 455 (8th Cir. 2006); Magana v. Commissioner, 118 T.C. 488, 493 (2002); Abu-Awad v. United States, 294 F. Supp. 2d 879, 889 (S.D. Tex. 2003). Accordingly, the final regulations do not adopt either of these recommendations.

The comments recommended that if the limitation on the taxpayer's ability to raise new issues during judicial review is retained, then the amendment to A-F5 (redesignated as A-F3 in the final regulations) should clarify that a taxpayer need not provide the evidence specified by Appeals with respect to an issue in order to present “any evidence” necessary to properly raise the issue. The IRS and the Treasury Department believe this change is unnecessary. The revision to A-F5 (redesignated as A-F3) does not suggest that the “any evidence” needed to avoid preclusion must be the evidence specified by Appeals. The revised language simply requires that the taxpayer submit some evidentiary support. This suggestion is not adopted in the final regulations.

The comments also suggested adding that a taxpayer need not provide any evidence to avoid preclusion if the case file already contains evidence with respect to that issue. This addition is not necessary. If the case file contains all the information needed for a decision on an issue, an Appeals officer will not request any additional evidence and the revised language in A-F5 (redesignated as A-F3 in the final regulations) will not apply. In the unlikely event that an Appeals officer making a determination on an issue requested information already in the file, a reviewing court should find the taxpayer's failure to provide any evidence does not prevent the issue from being raised. The final regulations do not adopt this recommendation.

The comments urged that the regulations make clear that the authority of Appeals officers to determine the validity, sufficiency and timeliness of a CDP notice does not alter or limit the authority of the reviewing court to make the same determination. The IRS and the Treasury Department believe this clarification is unnecessary. It is well-settled that reviewing courts have the authority to determine the validity, sufficiency and timeliness of a CDP notice. See, e.g., Kennedy v. Commissioner, 116 T.C. 255 (2001). This clarification is not adopted in the final regulations.

The comments recommended that administrative rules similar to those developed under section 6015 be added to the regulations. The regulations state that a spousal defense raised under section 66 or 6015 is governed by section 66 or 6015 and the regulations and procedures thereunder. See Treas. Reg. § 301.6330-1(e)(2). To the extent it is determined that further guidance is necessary, such guidance will be in the form of additions to the Internal Revenue Manual. The final regulations do not adopt this recommendation.

The final regulations include amendments to the existing regulations to remove references to judicial review by United States district courts. The Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780, section 855 amended section 6330(d) to eliminate the jurisdiction of the district courts to review notices of determination, leaving the Tax Court with sole jurisdiction. For this reason, Q&A-F3 and Q&A-F4 in the existing regulations are removed by the final regulations and Q&A-F5 and Q&A-F6 in the proposed regulations are redesignated as Q&A-F3 and Q&A-F4 in the final regulations. In addition, only the Tax Court is now mentioned in A-E11, paragraph (f)(1), A-F1, redesignated Q&A-F3 and Q&A-F4, Example 1 of paragraph (g)(3), Q&A-H2 and redesignated Q-I6.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In particular, the IRS and the Treasury Department find for good cause that a notice of proposed rulemaking and solicitation of public comments are unnecessary to amend the existing regulations to implement the modification of section 6330(d) by the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780. These amendments are made solely to conform the regulations to the statutory change enacted by Congress. The amendments do not involve any exercise of discretion or interpretation by the IRS or Treasury Department and the removal of United States district court jurisdiction would become effective even if the amendments were not made. Accordingly, the notice and public comment procedures do not apply. Because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the proposed regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Laurence K. Williams, Office of Associate Chief Counsel, Procedure and Administration (Collection, Bankruptcy and Summonses Division).

This document contains amendments to the Regulations on Procedure and Administration (26 CFR part 301) relating to the provision of notice under section 6320 of the Internal Revenue Code to taxpayers of a right to a CDP hearing (CDP Notice) after the IRS files a NFTL. Final regulations (TD 8979) were published on January 18, 2002, in the Federal Register (67 FR 2558) (the 2002 final regulations). The 2002 final regulations implemented certain changes made by section 3401 of the Internal Revenue Service Restructuring and Reform Act of 1998 (Pub. L. 105-206, 112 Stat. 685)(RRA 1998), including the addition of section 6320 to the Internal Revenue Code.

Section 3401 of RRA 1998 also added section 6330 to the Internal Revenue Code. That statute provides for notice to taxpayers of a right to a hearing before or, in limited cases, after levy. A number of the provisions in section 6330 concerning the conduct and judicial review of a CDP hearing are incorporated by reference in section 6320. On January 18, 2002, final regulations (TD 8980) under section 6330 were published in the Federal Register (67 FR 2549) along with the 2002 final regulations under section 6320.

On September 16, 2005, the IRS and the Treasury Department published in the Federal Register (70 FR 54681) a notice of proposed rulemaking and notice of public hearing (REG-150088-02). The IRS received one set of written comments responding to the notice of proposed rulemaking. Because no one requested to speak at the public hearing, the hearing was cancelled. After considering each of the comments, the proposed regulations are adopted as amended by this Treasury decision.

On August 17, 2006, the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780 (the PPA), was enacted. Section 855 of the PPA amended section 6330(d) of the Internal Revenue Code to withdraw judicial review of CDP notices of determination from United States district court jurisdiction, leaving review solely in the United States Tax Court. Section 6330(d) is made applicable to section 6320 hearings by section 6320(c). The amendment to section 6330(d), effective for notices of determination issued on or after October 17, 2006, requires the removal of references to district court review in the 2002 final regulations. This Treasury decision removes those references.

The IRS and the Treasury Department have determined that a notice of proposed rulemaking and solicitation of public comments are not required to amend the regulations to implement the modification to section 6330(d). These amendments are made solely to conform the regulations to a statutory change enacted by Congress. Because the amendments do not involve any exercise of discretion or interpretation, the notice and public comment procedures are unnecessary.

The comments and changes to the proposed regulations, and the amendments required by the Congressional modification to section 6330(d), are discussed below.

The comments suggested that the IRS be required to contact taxpayers who timely file an incomplete request for CDP hearing to give them the opportunity to perfect the request within a reasonable time period and further recommended that such contact be in writing and identify the infirmity requiring perfection. The comments also recommended that the final regulations establish a specific time period during which taxpayers may, by right, amend or perfect their previously-filed yet incomplete CDP hearing request. The request, according to the comments, should be considered timely if it is perfected within the applicable time period.

Currently, the practice of the IRS is to contact taxpayers whose hearing requests fail to satisfy the requirements specified by the existing regulations and ask these taxpayers to perfect their requests within a specified period of time. The IRS considers requests perfected within the time specified to be timely. The intention of the IRS and the Treasury Department is to incorporate this administrative procedure into the proposed regulations. The final regulations more clearly state that the IRS will make a reasonable attempt to contact taxpayers to give them a reasonable period of time to perfect incomplete requests. However, the timeframe in which to respond to the request, and the method of delivery of the request ( i.e. , orally or in writing) are more appropriately addressed in the Internal Revenue Manual. The final regulations make clear that requests perfected within the time period specified by the IRS will be considered timely.

The final regulations do not adopt the suggestion to establish a period of time during which a taxpayer is allowed to perfect an incomplete request, without regard to a perfection request from the IRS. The IRS and Treasury Department believe that the procedure incorporated into the final regulations is sufficient to permit taxpayers to ensure their requests are complete.

The comments recommended that the IRS Office of Appeals (Appeals) be given the discretion to permit a taxpayer to amend an imperfect hearing request after the period for perfecting the request has expired, if the taxpayer can demonstrate that such amendment furthers an alternative to collection. This change to the regulations is unnecessary because Appeals is already empowered to exercise this discretion. Neither the current regulations nor the proposed amendments limits Appeals from exercising this discretion. Accordingly, the final regulations do not adopt this recommendation. Further clarification, however, will be provided in the Internal Revenue Manual.

The comments suggested that where a taxpayer fails to perfect a CDP hearing request until after the time period specified by the IRS, the perfected request should be automatically treated as a request for an equivalent hearing. Treating untimely perfected requests as equivalent hearing requests may unduly prolong the process in cases in which a taxpayer does not want an equivalent hearing. Accordingly, the final regulations do not adopt this suggestion. The final regulations, however, provide that Appeals will determine the timeliness of CDP hearing requests. The final regulations also add to the proposed regulations that taxpayers making an untimely request will be provided the opportunity to have the request for CDP hearing treated as a request for equivalent hearing, without submitting an additional request.

The comments requested that the final regulations give taxpayers whose hearing requests might be construed as making a frivolous argument the right to amend their hearing requests to raise relevant, non-frivolous issues. The comments further recommended that all taxpayers be given the right to supplement the hearing request prior to the conference conducted by Appeals.

These comments indicate concern that taxpayers may be unable to articulate reasons for disagreeing with the collection action that are satisfactory to Appeals. The reasons for disagreeing with the collection action need not be detailed. To assist taxpayers in articulating reasons, the IRS is revising Form 12153, “Request for a Collection Due Process Hearing,” to add examples of the most common reasons taxpayers give for requesting a hearing, including requests for collection alternatives. In any event, the informal nature of the CDP hearing permits taxpayers and Appeals to discuss collection alternatives and issues not listed in the hearing request if such discussion will help resolve the case. Accordingly, the final regulations do not adopt these recommendations.

The comments urged that the final regulations guarantee a face-to-face conference for each taxpayer who presents a relevant, non-frivolous reason for disagreement with the collection action. If this recommendation is not adopted, the comments suggest that the regulations address and provide examples of when a face-to-face conference will not be granted. The final regulations do not adopt the recommendation to guarantee a face-to-face conference for each taxpayer raising a relevant, non-frivolous issue. The IRS and the Treasury Department agree with the comments that a face-to-face conference can be a useful forum for resolving a taxpayer's issues. The final regulations recognize the importance of a face-to-face meeting by providing that taxpayers will ordinarily be offered an opportunity for a face-to-face conference. There will be instances, however, when a face-to-face conference is not practical. The final regulations identify typical situations in which a face-to-face conference will be neither necessary nor productive. Except for these situations, the IRS and the Treasury Department anticipate that Appeals will afford a face-to-face meeting to taxpayers who request one. Nonetheless, unanticipated circumstances may arise in which granting a face-to-face conference will not be appropriate. The final regulations give Appeals the flexibility needed to respond to unanticipated circumstances.

Adoption of the comment requesting guidance on when a face-to-face conference will not be granted is unnecessary. The final regulations retain descriptions of situations in which a face-to-face conference will not be granted, as illustrated in the proposed regulations. Further guidance on granting face-to-face conferences will be provided in the Internal Revenue Manual.

The comments suggested that a taxpayer who appears to be presenting only frivolous reasons be given an opportunity to provide relevant, non-frivolous reasons in order to obtain a face-to-face conference. Adoption of this recommendation is unnecessary. Correspondence sent by Appeals to taxpayers who make only frivolous arguments invites them to submit relevant, non-frivolous reasons. Appeals offers face-to-face conferences to taxpayers who respond by providing such reasons.

The comments also suggested that the regulations define relevant and frivolous. The IRS and the Treasury Department believe that any attempt to define these terms is unnecessary and could result in underinclusive definitions. For example, the comments suggest that a frivolous issue be defined as an issue that is the same or substantially similar to an issue identified as frivolous by the IRS in published guidance. It is not possible to anticipate or keep pace with the evolution of frivolous arguments through published guidance. Instead, taxpayers are advised to consult the lists of examples of frivolous arguments in IRS Publication 2105, “Why Do I Have to Pay Taxes” and on the IRS Web site in a document entitled “The Truth about Frivolous Tax Arguments.” The names and web addresses of these documents, and a toll-free number to order Publication 2105, will be added to the instructions to Form 12153 to help taxpayers avoid making these arguments.

The comments recommended clarification of the proposed rule that a face-to-face conference concerning a collection alternative will not be granted unless the alternative would be available to other taxpayers in similar circumstances. According to the comments, a taxpayer should not be denied a face-to-face conference because the requested collection alternative cannot be accepted, for example, because it appears from financial information that the taxpayer can pay the liabilities in full. This proposed rule was not intended to deny a face-to-face conference because the requested collection alternative would not be accepted. The intention of this rule is to permit the denial of a face-to-face conference to discuss a collection alternative for which the taxpayer is not eligible. A lack of eligibility under IRS policy is tied to a taxpayer's compliance with the Federal tax laws, not to the taxpayer's financial circumstances or ability to request the most appropriate alternative. For example, if the taxpayer has not filed all required tax returns, the taxpayer is not eligible for an offer to compromise or an installment agreement.

In response to the concerns expressed in the comments, the final regulations amplify the rule that a face-to-face conference to discuss a collection alternative will not be granted unless other taxpayers would be eligible for the alternative in similar circumstances. The final regulations provide in A-D8 that Appeals in its discretion may grant a face-to-face conference if Appeals determines that a face-to-face conference is appropriate to explain to the taxpayer the requirements for becoming eligible for a collection alternative. The final regulations also provide that taxpayers will be given an opportunity to demonstrate they are eligible for a collection alternative in order to obtain a face-to-face conference to discuss the alternative. Taxpayers will also be given an opportunity to become eligible for a collection alternative in order to obtain a face-to-face conference. For example, under the final regulations, if a taxpayer appears to have failed to file all required returns (and thus appears not to be eligible for an offer to compromise or an installment agreement), the taxpayer will be given an opportunity to demonstrate the inapplicability of the filing requirements or to file delinquent returns, in order to obtain a face-to-face conference. The final regulations further provide that a taxpayer's eligibility for a collection alternative does not include the taxpayer's ability to pay the unpaid tax.

The comments expressed concern that the amendment providing a face-to-face conference at an Appeals office other than an office in which all officers or employees had prior involvement could be construed as giving Appeals the discretion to deny a face-to-face conference even if the taxpayer would have been granted a face-to-face conference at the original location. The relevant sentence in A-D8 in the final regulations has been rewritten to make clear that Appeals does not have discretion to deny a face-to-face conference at an alternate location if the taxpayer would have been granted a face-to-face conference but for the disqualification of the Appeals employees at the original location.

The comments suggested that the regulations permit face-to-face conferences to be held not only at the Appeals office closest to the taxpayer's residence or, for a business taxpayer, the taxpayer's principal place of business, but also at the Appeals office closest to the taxpayer's school or place of employment, the authorized representative's place of business, or some other location convenient to the taxpayer or the taxpayer's representative. The IRS and Treasury Department believe the rules for CDP hearings should be consistent with the treatment of other proceedings in Appeals. The longstanding practice of Appeals in cases not docketed in the Tax Court is to grant face-to-face conferences in the Appeals office closest to the taxpayer's residence or principal place of business. The practice is retained in the final regulations. Appeals will, however, attempt to accommodate reasonable requests to hold the face-to-face conference at an Appeals office more convenient to the taxpayer.

The comments expressed concern that the definition of prior involvement under section 6320(b)(3) or 6330(b)(3) in the proposed regulations could be construed too narrowly in two ways. First, the definition of prior involvement as involvement in a prior hearing or proceeding could be read to exclude involvement in some informal settings, e.g. , the Appeals officer's participation in a mediation session. In order to clarify that no such limitation is intended, the final regulations substitute matter for hearing or proceeding in A-D4 of paragraph (d)(2). Second, defining prior involvement to exist when the Appeals officer previously considered the same tax liability could be construed as excluding from the definition instances in which the Appeals officer previously considered questions bearing only on collection issues. The final regulations adopt the suggestion in the comments to remove the word liability in A-D4 in order to eliminate the potential interpretation that there is a distinction between liability and collection issues in determining prior involvement.

The comments also requested that a mediation example be added to paragraph (d)(3). The IRS and the Treasury Department believe that the change made to A-D4 adequately clarifies the definition of prior involvement. This example and others will be added to the Internal Revenue Manual to ensure the proper administration of sections 6320(b)(3) and 6330(b)(3).

The comments recommended that the regulations address the treatment of ex parte communications during CDP hearings. The rules applicable to ex parte communications during CDP hearings and other Appeals proceedings are provided in Rev. Proc. 2000-43, 2000-43 I.R.B. 404. Therefore, these rules are not duplicated in the regulations under sections 6320 and 6330.

The comments recommended that the regulations be amended to provide that self-reported tax liabilities may be disputed in a CDP hearing. The final regulations adopt this recommendation. See also Montgomery v. Commissioner, 122 T.C. 1 (2004), acq. 2005-51 I.R.B. 1152.

The comments also requested changes in the existing regulations' interpretation of preclusive events under section 6330(c)(2)(B). Under section 6330(c)(2)(B), during a CDP hearing, a taxpayer may challenge the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability. Section 6330(c)(2)(B) is made applicable to section 6320 hearings by section 6320(c). According to the comments, the only opportunity to dispute the tax liability that is sufficient to prevent the taxpayer from challenging the liability in a CDP hearing is the prior opportunity to dispute the liability in a judicial forum. The IRS and the Treasury Department believe that the existing regulations correctly include an opportunity for an Appeals conference as a preclusive prior opportunity. The text of section 6330(c)(2)(B) does not contain language limiting prior opportunities to judicial proceedings. Moreover, it is consistent for a taxpayer who has had an opportunity to obtain a determination of liability by Appeals in one administrative hearing to be precluded from obtaining an Appeals determination in a subsequent CDP administrative hearing with respect to the same liability. This interpretation of section 6330(c)(2)(B) has been upheld by the courts. See, e.g. , Pelliccio v. United States, 253 F. Supp. 2d 258, 261-62 (D. Conn. 2003). Accordingly, the final regulations do not adopt this suggestion.

Alternatively, the comments also recommended that the regulations specify that a pre-CDP Appeals conference is not a prior opportunity to dispute liability under section 6330(c)(2)(B) if the receipt of the conference was conditioned upon the taxpayer's agreement to extend the assessment statute of limitations with respect to the liability and the taxpayer declined to extend the statute. The IRS and Treasury Department believe this addition is unnecessary. For taxes subject to deficiency procedures, the relevant, pre-assessment “prior opportunity” is the receipt of the notice of deficiency. The offer of an Appeals conference prior to receipt of the notice of deficiency does not constitute an opportunity to dispute liability under section 6330(c)(2)(B). This interpretation of section 6330(c)(2)(B) has been added to paragraph (e)(3) A-E2 to remove any uncertainty about this matter. For liabilities not subject to deficiency procedures, the offer of an Appeals conference prior to assessment constitutes an opportunity to dispute the liability under section 6330(c)(2)(B). Appeals conferences to consider these types of liabilities are rarely conditioned upon an extension of the assessment statute of limitations. The IRS generally makes conditional offers of a conference only when a taxpayer makes an untimely request for review of a proposed Trust Fund Recovery Penalty pursuant to a Letter 1153 and less than one year remains on the assessment statute of limitations. In this circumstance, however, the opportunity for an Appeals conference offered in the Letter 1153 constitutes the opportunity to dispute the liability under section 6330(c)(2)(B). The conditional offer made after the expiration of the prior opportunity provided in the Letter 1153 is irrelevant. For these reasons, the final regulations do not adopt this comment.

The comments objected to the addition of a definition of administrative record to the regulations as an attempt to overrule the Tax Court's decision in Robinette v. Commissioner, 123 T.C. 85 (2004), rev'd, 439 F.3d 455 (8th Cir. 2006). The assumption that Robinette eliminated any role for an administrative record in CDP court proceedings is not supported by the Court's opinion. While the Tax Court held in Robinette that it was not required to limit its abuse-of-discretion review to the administrative record, it did not reject the utility of an administrative record. Subsequent to the submission of the comments, the United States Court of Appeals for the Eighth Circuit reversed the Tax Court and held that abuse-of-discretion review in CDP cases is limited to the administrative record. Robinette v. Commissioner, 439 F.3d 455 (8th Cir. 2006). For these reasons, it is important that taxpayers and the IRS have a common understanding of the scope of the administrative record. The definition is retained in the final regulations.

The comments suggested that the proposed definition of the administrative record permits Appeals officers and employees to exclude from the record for judicial review issues, arguments, and evidence presented orally by the taxpayer, and to exclude written communications and documents. The administrative record definition is not intended to suggest that the reviewing court is not permitted to determine the contents of the administrative record or the record's adequacy in an individual case. The reviewing court has the authority to receive evidence concerning what happened during the CDP hearing. The definition is provided to establish for the benefit of the IRS and taxpayers a baseline description of what each administrative record should contain to ensure a record sufficient for judicial review. The final regulations have not been changed in this regard. The final regulations, however, adopt the suggestion that the description of the case file in A-D7 and in the definition of administrative record in A-F6 of the proposed regulations (redesignated as A-F4 in the final regulations) be made consistent.

The comments recommended that the final regulations require each Appeals officer to include in the notice of determination a list of the documents the Appeals officer believes are included in the administrative record. The justification for this proposed requirement is that the list would assist the taxpayer in deciding whether to seek judicial review. The list of documents, according to the comments, will also assist the court and taxpayers seeking review to more efficiently ascertain whether there was an abuse of discretion.

The final regulations do not adopt this recommendation. Requiring Appeals officers to prepare a list of documents constituting the administrative record in each of the thousands of cases handled each year would impose a heavy burden on Appeals without a commensurate benefit to taxpayers. The notice of determination issued in each case describes the facts and reasons supporting the Appeals officer's determination and should provide an adequate basis for the taxpayer's decision whether to seek judicial review.

The IRS and the Treasury Department acknowledge that disputes have arisen with respect to the contents of the administrative record in CDP cases and that there are no special rules in place to resolve these disputes. An appropriate solution could involve the Tax Court's development of rules governing the preparation and submission of the administrative record for abuse-of-discretion review, particularly now that the recently-enacted Pension Protection Act of 2006 requires all CDP cases to be litigated in the Tax Court.

The comments suggested removal of the limitation in the existing regulations that a taxpayer is precluded from obtaining judicial review of an issue not raised with Appeals during the CDP hearing. As an alternative, the comments recommended that a taxpayer only be prevented from raising those issues the taxpayer could have, but failed to raise during the CDP hearing. The limitation in the existing regulations implements a basic principle of administrative law that those seeking review of an issue must first give the agency the opportunity to evaluate and respond to the issue. This limitation has been upheld in the courts. See Robinette v. Commissioner, 123 T.C. 85, 101-102 (2004), rev'd on other grounds, 439 F.3d 455 (8th Cir. 2006); Magana v. Commissioner, 118 T.C. 488, 493 (2002); Abu-Awad v. United States, 294 F. Supp.2d 879, 889 (S.D. Tex. 2003). Accordingly, the final regulations do not adopt either of these recommendations.

The comments recommended that if the limitation on the taxpayer's ability to raise new issues during judicial review is retained, then the amendment to A-F5 (redesignated as A-F3 in the final regulations) should clarify that a taxpayer need not provide the evidence specified by Appeals with respect to an issue in order to present “any evidence” necessary to properly raise the issue. The IRS and the Treasury Department believe this change is unnecessary. The revision to A-F5 (redesignated as A-F3) does not suggest that the “any evidence” needed to avoid preclusion must be the evidence specified by Appeals. The revised language simply requires that the taxpayer submit some evidentiary support. This suggestion is not adopted in the final regulations.

The comments also suggested adding that a taxpayer need not provide any evidence to avoid preclusion if the case file already contains evidence with respect to that issue. This addition is not necessary. If the case file contains all the information needed for a decision on an issue, an Appeals officer will not request any additional evidence and the revised language in A-F5 (redesignated as A-F3 in the final regulations) will not apply. In the unlikely event that an Appeals officer making a determination on an issue requested information already in the file, a reviewing court should find the taxpayer's failure to provide any evidence does not prevent the issue from being raised. The final regulations do not adopt this recommendation.

The comments urged that the regulations make clear that the authority of Appeals officers to determine the validity, sufficiency and timeliness of a CDP notice does not alter or limit the authority of the reviewing court to make the same determination. The IRS and the Treasury Department believe this clarification is unnecessary. It is well-settled that reviewing courts have the authority to determine the validity, sufficiency and timeliness of a CDP notice. See, e.g., Kennedy v. Commissioner, 116 T.C. 255 (2001). This clarification is not adopted in the final regulations.

The comments recommended that administrative rules similar to those developed under section 6015 be added to the regulations. The regulations state that a spousal defense raised under section 66 or 6015 is governed by section 66 or 6015 and the regulations and procedures thereunder. See Treas. Reg. § 301.6320-1(e)(2). To the extent it is determined that further guidance is necessary, such guidance will be in the form of additions to the Internal Revenue Manual. The final regulations do not adopt this recommendation.

The final regulations include amendments to the existing regulations to remove references to judicial review by United States district courts. The Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780, section 855 amended section 6330(d) to eliminate the jurisdiction of the district courts to review notices of determination, leaving the Tax Court with sole jurisdiction. Section 6330(d) is made applicable to section 6320 hearings by section 6320(c). To make clear in the regulations that judicial review is available only in the Tax Court, Q&A-F3 and Q&A-F4 in the existing regulations are removed by the final regulations and Q&A-F5 and Q&A-F6 in the proposed regulations are redesignated as Q&A-F3 and Q&A-F4 in the final regulations. In addition, only the Tax Court is now mentioned in A-E11, paragraph (f)(1), A-F1, redesignated Q&A-F3 and Q&A-F4, Example 1 of paragraph (g)(3), Q&A-H2 and redesignated Q-I6.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In particular, the IRS and the Treasury Department find for good cause that a notice of proposed rulemaking and solicitation of public comments are unnecessary to amend the existing regulations to implement the modification of section 6330(d) by the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780. These amendments are made solely to conform the regulations to the statutory change enacted by Congress. The amendments do not involve any exercise of discretion or interpretation by the IRS or Treasury Department and the removal of United States district court jurisdiction would become effective even if the amendments were not made. Accordingly, the notice and public comment procedures do not apply. Because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the proposed regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Laurence K. Williams, Office of Associate Chief Counsel, Procedure and Administration (Collection, Bankruptcy and Summonses Division).

OSHA requests comments on all issues related to this action. OSHA also welcomes comments on the Agency's findings that there are not negative economic or other regulatory impacts of this action on the regulated community. If OSHA receives no significant adverse comment, OSHA will publish a Federal Register document confirming the effective date of this direct final rule and withdrawing the companion proposed rule published in the Proposed Rules section of today's Federal Register . Such confirmation may include minor stylistic or technical changes to the document.

Comments received will be posted without change to http://dockets.osha.gov, including any personal information provided. OSHA cautions you about submitting personal information such as social security numbers and birth dates.

In direct final rulemaking, an agency publishes a final rule in the Federal Register with a statement that the rule will go into effect unless a significant adverse comment is received within a specified period of time. An identical proposed rule is often published at the same time. If no significant adverse comments are submitted, the rule goes into effect. If any significant adverse comments are received, the agency withdraws the direct final rule and treats the comments as responses to the proposed rule. Direct final rulemaking is used where an agency anticipates that a rule will not be controversial. Examples include minor substantive changes to regulations updating incorporated references to the latest edition of national consensus standards, and direct incorporations of mandates from new legislation.

For purposes of this direct final rulemaking, a significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach. In determining whether a comment necessitates withdrawal of the direct final rule, OSHA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. A comment recommending additional changes will not be considered a significant adverse comment unless the comment states why the direct final rule would be ineffective without the addition. If a timely significant adverse comment is received, the Agency will publish a notice of significant adverse comment in the Federal Register withdrawing this direct final rule no later than January 16, 2007.

OSHA is also publishing today a companion proposed rule, which is identical to this direct final rule. In the event the direct final rule is withdrawn because of significant adverse comment, OSHA intends to proceed with the rulemaking by addressing the comment(s) and publishing a new final rule. If a significant adverse comment is received regarding certain revisions included in this direct final rule, but not others, OSHA may (1) Finalize those changes that did not receive significant adverse comment, and (2) conduct further rulemaking under the companion proposed rule for the changes that did receive significant adverse comment. The comment period for the proposed rule runs concurrently with that of the direct final rule. Any comments received under the companion proposed rule will be treated as comments regarding the direct final rule. Likewise, significant adverse comments submitted to the direct final rule will be considered as comments to the companion proposed rule; the Agency will consider such comments in developing a subsequent final rule.

OSHA has determined that the subject of this rulemaking is suitable for direct final rulemaking. This direct final rule will enhance OSHA's fire protection in shipyard standard by adding the most current NFPA consensus standards to the OSHA standard. OSHA's changes will benefit the safety of employees by requiring employers to comply with the newer standards, which may be even more protective than the older standards. Furthermore, OSHA's changes will not result in additional compliance costs. OSHA does not anticipate any objections to this direct final rule.

On September 15, 2004, OSHA issued a new fire protection final rule for shipyard employment that incorporated by reference 19 National Fire Protection Association (NFPA) standards (69 FR 55667). The purpose of this direct final rule is to add ten recently updated NFPA standards to the standard for fire protection in shipyard employment. The 10 NFPA standards are new versions of 11 NFPA standards currently in OSHA's standard. The reason there are only 10 is because the NFPA combined two of its standards, NFPA 11-1998 and NFPA 11A-1999, into the NFPA 11-2002 standard covering foam fire extinguishing systems. This direct final rule replaces the 11 older NFPA standards with the 10 newer NFPA standards.

Table I lists the older NFPA standards incorporated by reference in the fire protection in shipyard employment standard, and lists the sections in the standard in which these NFPA standards are referenced. It also lists the latest versions of the NFPA standards to be added to the standard for fire protection in shipyard employment through this direct final rule.

OSHA has examined the latest versions of the NFPA standards and compared them with the versions currently referenced in the fire protection in shipyard employment standard. OSHA finds that the latest versions are as protective on the whole, and in certain ways more protective, than the earlier versions of the same NFPA standards. The latest versions are also more comprehensive than the earlier versions and reflect recent developments in safety technology, equipment, and testing. The changes to the NFPA standards include:

• Standard on Open-Circuit Self-Contained Breathing Apparatus for Fire and Emergency Services —NFPA 1981-2002 has been revised to add requirements for heads-up displays (HUD) that provide the user of a self-contained breathing apparatus (SCBA) with information regarding breathing air supply status, alert the user when the breathing air supply is at 50 percent of full, and, where the HUD is powered by battery power source, warn the user when the HUD only has 2 more hours of battery power. The updated standard also includes new requirements for a Rapid Intervention Company/Crew (RIC) Universal Air Connection (UAC) (or RIC UAC) on all new SCBA. The RIC UAC is a standard connection device that allows a rescue breathing air supply to be joined to the SCBA of a victim, fire fighter or other emergency services responder to replenish the breathing air in the SCBA breathing air cylinder when the victim cannot be rapidly moved to a safe atmosphere. (Ex. 1-1).

• Standard for Low-, Medium-, and High-Expansion Foam —NFPA 11-2005 has been revised to combine the older NFPA 11 low-expansion foam system requirements with the older NFPA 11A medium- and high-expansion foam provisions. (Ex.1-7).

• Standard for Portable Fire Extinguishers —NFPA 10-2002 has been revised to prohibit “extended wand-type” discharge devices on Class K—fire extinguishers manufactured after 01/01/2002. (Class “K” extinguishers are used for “combustible cooking media” fire hazards in commercial kitchens.) The new version of NFPA 10 allows the use of electronic equipment to monitor the status of portable fire extinguishers an alternative that may be more effective and efficient than manual monitoring (Ex. 1-2).

• National Fire Alarm Code —NFPA 72-2002 has been updated to revise fire alarm power supply requirements, to improve the survivability of fire alarms from attack by fire, and to improve the “supervising stations” used in larger fire alarm systems. (Ex. 1-3).

• Standard for the Installation of Sprinkler Systems —NFPA 13-2002 has been updated to add the sprinkler installation requirements found in other NFPA standards, to include criteria for solid shelf storage areas, and to make the standard easier for users to reference. (Ex. 1-5).

The remaining NFPA standards have been updated to make minor technical and editorial changes and to improve readability by formatting them into a standard layout.

The purpose of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. , is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 655(b), 654(b). A safety or health standard is a standard “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate within the meaning of section 652(8) if, among other things, a significant risk of material harm exists in the workplace and the proposed standard would substantially reduce or eliminate that workplace risk.

This direct final rule, which addresses the hazard of fire in shipyard employment, may enhance the employee protections currently in place through incorporated references to NFPA consensus standards. In its final rule on fire protection in shipyard employment, OSHA discussed injuries and fatalities that may result from fire hazards in shipyards, and the potential for reducing those injuries and deaths through adoption of the final standard (69 FR 55668, 55669, 55699). Because this direct final rule simply updates the NFPA standards incorporated by reference in OSHA's fire protection standard to their most recent versions, it is unnecessary to determine significant risk, or the extent to which the direct final rule would reduce that risk, as would typically be required by Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).

This action is not economically significant within the context of Executive Order 12866, or a “major rule” under the Unfunded Mandates Reform Act or Section 801 of the Small Business Regulatory Enforcement Fairness Act. The rulemaking would impose no additional costs on any private or public sector entity, and does not meet any of the criteria for an economically significant or major rule specified by the Executive Order or relevant statutes.

This action simply includes updated references to NFPA standards. The Agency compared the older versions of the NFPA standards with the new versions via side-by-side analyses. Based on our findings, the Agency concludes that incorporating the new versions of the NFPA standards will not impose any additional costs on any private or public sector entity.

Furthermore, because the rule imposes no additional costs on employers, OSHA certifies that it would not have a significant impact on a substantial number of small entities. Accordingly, the Agency need not prepare a final regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This action does not impose new information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30.

OSHA has reviewed this direct final rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. Executive Order 13132 provides for preemption of State law only if there is a clear congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

Section 18 of the OSH Act (29 U.S.C. 651 et seq. ) expresses Congress' intent to preempt State laws where OSHA has promulgated occupational safety and health standards. Under the OSH Act, a State can avoid preemption on issues covered by Federal standards only if it submits, and obtains Federal approval of, a plan for the development of such standards and their enforcement (State-Plan State). 29 U.S.C. 667. Occupational safety and health standards developed by such State-Plan States must, among other things, be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. Subject to these requirements, State-Plan States are free to develop and enforce under State law their own requirements for safety and health standards.

This direct final rule complies with Executive Order 13132. As Congress has expressed a clear intent for OSHA standards to preempt State job safety and health rules in areas addressed by OSHA standards in States without OSHA-approved State Plans, this rule limits State policy options in the same manner as all OSHA standards. In States with OSHA-approved State Plans, this action does not significantly limit State policy options.

The 26 States or U.S. Territories with their own OSHA approved occupational safety and health plans must revise their standards to reflect this final standard or show OSHA why there is no need for action, e.g. , because an existing state standard covering this area is already “at least as effective as” the new Federal standard. The state standard must be at least as effective as this final standard, must be applicable to both the private and public (State and local government employees) sectors, and must be completed within six months of the publication date of this final Federal rule.

Currently only five States (California, Minnesota, Oregon, Vermont, and Washington) with their own State plans cover private sector onshore maritime activities in whole or in part. Federal OSHA enforces maritime standards offshore in all States and provides onshore coverage of maritime activities in Federal OSHA States, in the five States above, to the extent not covered by them, and in all the other State Plan States: Alaska, Arizona, Connecticut (plan covers only State and local government employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Nevada, New Jersey (plan covers only State and local government employees), New Mexico, New York (plan covers only State and local government employees), North Carolina, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Virgin Islands (plan covers only territorial government employees), and Wyoming.

This direct final rule has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA). 2 U.S.C. 1501 et seq. For the purposes of the UMRA, the Agency certifies that this direct final rule does not impose any Federal mandate that may result in increased expenditures by State, local, or tribal governments, or increased expenditures by the private sector, of more than $100 million in any year.

Fire protection, Hazardous substances, Incorporation by reference, Longshore and harbor workers, Occupational safety and health, Reporting and recordkeeping requirements, Shipyards, and Vessels.

This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is issued pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 5-2002, and 29 CFR Part 1911.

31 U.S.C. 9306 was amended November 29, 1999 to allow a surety corporation to appoint a State official as its process agent. This means that surety corporations conducting business in more than one judicial district in a state can appoint a State official to receive service of process on the corporation, thereby saving surety corporations from having to appoint an agent in each judicial district of that State. Prior to the amendment, a surety did not have the option of appointing a State official as its process agent to satisfy the service of process requirement. This revised rule makes the regulation at 31 CFR Part 224 consistent with 31 U.S.C. 9306 by providing for the appointment of State officials as process agents.

An additional change relates to the requirement currently found in 31 CFR 224.2(a)(3) which requires that an agent be appointed for service of process “in the District of Columbia where the bond is returnable and filed.” This requirement applies to all surety corporations whether or not the corporation contemplates the writing of bonds in favor of the United States to be undertaken within the District of Columbia. Requiring companies to appoint an agent in the District of Columbia, when they are not incorporated in the District of Columbia, and do not write bonds in the District of Columbia, is an unnecessary financial burden on the companies. FMS can see no benefit to the Federal government in maintaining this requirement since, as a matter of practice, Federal bonds are not necessarily returnable and filed in the District of Columbia. The revised rule eliminates this requirement.

The sample power of attorney form currently found in 31 CFR 224.4 is replaced with a reference to the Surety Bond Branch Web page. Moving the form to the Web page will allow the sample power of attorney form to be updated more easily. Also, it will provide surety corporations with easy access to an electronic version of the form.

Finally, 31 CFR 224.6 currently states that a listing of the divisional offices of the court in each judicial district may be obtained from the Surety Bond Branch, Financial Management Service, U.S. Department of the Treasury. This information is available directly from the U.S. Courts. Therefore, the regulation is revised to provide the contact information for the U.S. Courts.

Administrative Procedure Act. We did not publish a Notice of Proposed Rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), a rule is exempt from notice and comment rulemaking requirements if the agency finds that notice and public comment are unnecessary or contrary to the public interest. This rule reflects provisions that are already in effect as a matter of law. The changes will have no substantive effect on the public; therefore, it is unnecessary to publish an NPRM. Likewise, for the same reasons a delayed effective date is not required.

Clarity of Regulations. Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite comment on how to make this rule clearer. For example, you may wish to discuss: (1) Whether we have organized the material to suit your needs; (2) whether the requirements of the rule are clear; or (3) whether there is something else we could do to make this rule easier to understand.

Executive Order 12866. FMS has determined that this regulation is not a significant action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.

Regulatory Flexibility Act. Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

Background

FMS is the Treasury Department bureau that administers and certifies payments from the Judgment Fund, 31 U.S.C. 1304. Pursuant to Public Law 104-53 (November 19, 1995), the Judgment Fund function was transferred from the General Accounting Office (GAO), now known as the Government Accountability Office, to the Office of Management and Budget (OMB). OMB delegated this responsibility to the Treasury Department.

We are revising 31 CFR part 256, in part, to clarify that Judgment Fund payment requests are no longer submitted to GAO, to remove the reference to obsolete processing requirements for awards that are above $100,000 (this statutory ceiling was removed in 1977 by Public Law 95-26), to provide guidance on the kinds of awards that are properly payable from the Judgment Fund, and to provide information on the current procedures for obtaining such payments. This rule seeks to provide guidance to agencies government-wide that submit requests for payments from the Judgment Fund for paying litigative and administrative awards. Additionally, it provides direction to private attorneys regarding filing requirements necessary to preserve the right to interest.

Administrative Procedure Act. This rule reflects provisions that are already in effect as a matter of law and provides information on the current procedures for obtaining payments from the Judgment Fund. Under 5 U.S.C. 553(b)(B), this rule is exempt from notice and comment rulemaking requirements on the grounds that the amendments are non-substantive and further delay in making these amendments is unnecessary and contrary to the public interest. Likewise, for the same reasons a delayed effective date is not required.

Clarity of Regulations. Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite comment on how to make this rule clearer. For example, you may wish to discuss: (1) Whether we have organized the material to suit your needs; (2) whether the requirements of the rule are clear; or (3) whether there is something else we could do to make this rule easier to understand.

Executive Order 12866. FMS has determined that this rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.

Regulatory Flexibility Act. Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

The purpose of this action is to announce that on August 21, 2006, EPA Region 10, delegated partial administrative authority for implementation of certain provisions of the Umatilla FIP to the CTUIR. See 40 CFR part 49, subpart M, section 11011 through 11040, as authorized by 40 CFR 49.122 of the Federal Air Rules for Reservations, (FARR), 40 CFR part 49, subpart C.

Federal regulation 40 CFR 49.122 provides EPA authority to delegate to Indian Tribes, partial administrative authority to administer provisions of the Federal Air Rules for Reservations (FARR), 40 CFR part 49, subpart C. Tribes must submit a request to the Regional Administrator that meets the requirements of 40 CFR 49.122.

On August 21, 2006, EPA entered into an “Agreement for Partial Delegation of the Federal Implementation Plan for the Umatilla Indian Reservation by the United States Environmental Protection Agency, Region 10, to the Confederated Tribes of the Umatilla Indian.” The Delegation Agreement provides authority for the CTUIR to administer the following rules that are part of the Federal Implementation Plan for the Nez Perce Tribe of Idaho, 40 CFR 49.11011 through 49.11040: 49.11020(a) Section 49.123 General provisions; 49.11020(g) Section 49.131 General rule for open burning; 49.11020(h) Section 49.132 Rule for general open burning permits; 49.11020(i) Section 49.133 Rule for agricultural burning permits; 49.11020(j) Section 49.134 Rule for forestry and silvicultural burning permits; and 49.11020(l) Section 49.137 Rule for air pollution episodes.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA is merely informing the public of partial delegation of administrative authority to the CTUIR and making a technical amendment to the Code of Federal Regulations (CFR) by adding a note announcing the partial delegation. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

Moreover, since today's action does not create any new regulatory requirements, EPA finds that good cause exists to provide for an immediate effective date pursuant to 5 U.S.C. 553(d)(3).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely makes a technical amendment and gives notice of a partial delegation of administrative authority. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the regulation. EPA has concluded that this rule may have tribal implications. EPA's action fulfills a requirement to publish a notice announcing partial delegation of administrative authority to the CTUIR and noting the partial delegation in the CFR. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This technical amendment merely notes that partial delegation of administrative authority to the CTUIR is in effect. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

This action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

1. Docket. The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0834. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center in the EPA Docket Center (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket and Information Center is (202) 566-1742.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/. The EPA also has posted the RIA on its Web site for particle pollution and the revised PM standards at http://www.epa.gov/pm. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm for current information on docket status, locations and telephone numbers.

In setting primary ambient air quality standards, EPA's responsibility under the law is to establish standards that protect public health. The Clean Air Act (CAA) requires EPA, for each criteria pollutant, to set a standard that protects public health with “an adequate margin of safety.” As interpreted by the Agency and the courts, the CAA requires EPA to base this decision on health considerations; economic factors cannot be considered.

Although EPA cannot consider costs in setting the primary air quality standards, consideration of costs and benefits is essential to the efficient implementation of these standards. The impacts of cost, benefits, and efficiency are considered by the States when making decisions regarding what timelines, strategies, and policies make the most sense.

This PM 2.5 NAAQS RIA is focused on development and analyses of illustrative control strategies to meet alternative suites of standards in 2020, the latest year by which the CAA generally requires full attainment of the new standards. Because the States are ultimately responsible for implementing strategies to meet the revised standards, the RIA provides insights and analysis of a limited number of illustrative control strategies that States might adopt to meet the revised standards. These strategies are subject to a number of important assumptions, uncertainties and limitations, which EPA documents in the relevant portions of the analysis.

The EPA presents this analysis pursuant to Executive Order 12866 and the guidelines of OMB Circular A-4. 1 These documents present guidelines for EPA to assess the incremental benefits and costs of the selected regulatory approach as well as one less stringent, and one more stringent, option. In this RIA, the 1997 standards represent the less stringent option, and the alternative suite of standards including a tighter annual standard of 14 g/m 3 together with the revised 24-hour standard of 35 g/m 3 represents the more stringent option.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR Part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities.

The changed BFEs are in accordance with 44 CFR 65.4. National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director for the FEMA certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12988.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.