[Federal Register Volume 73, Number 42 (Monday, March 3, 2008)]
[Rules and Regulations]
[Pages 11349-11353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3945]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2007-0036]
RIN 0960-AG49


Amendment to the Attorney Advisor Program

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are issuing this final rule to adopt without change the 
interim final rule we published on August 9, 2007, which temporarily 
modifies the prehearing procedures we follow in claims for Social 
Security disability benefits and supplemental security income (SSI) 
payments based on disability or blindness. Under this final rule, we 
are permitting certain attorney advisors to conduct certain prehearing 
proceedings, and where the documentary record developed as a result of 
these proceedings warrants, issue decisions that are wholly favorable 
to the parties to the hearing.

DATES: The interim rule published August 9, 2007 is effective March 3, 
2008.

FOR FURTHER INFORMATION CONTACT: Marilyn Hull, Social Security 
Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, 703-
605-8500 for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Electronic Version

    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.

Explanation of Changes

    We are dedicated to providing high-quality service to the American 
public. Today and for the foreseeable future, we face significant 
challenges in our ability to provide the level of service that 
disability benefit claimants deserve because of the significantly 
increased

[[Page 11350]]

number and complexity of these benefit claims. Consequently, we are 
temporarily modifying the procedures we follow in the administrative 
law judge (ALJ) hearings process in claims for Social Security 
disability benefits and SSI payments based on disability or blindness. 
This temporary modification will help us provide accurate and timely 
service to claimants for Social Security disability benefits and SSI 
payments based on disability or blindness. With this modification, we 
are permitting certain attorney advisors to conduct certain prehearing 
proceedings to help develop claims and issue wholly favorable decisions 
in appropriate claims before a hearing is conducted. For reasons we 
explain in the Public Comments section of this preamble, we expect that 
this modification will help us to reduce the number of pending cases at 
the hearing level. We intend to monitor the program closely and to make 
changes if it does not meet our expectations.
    This temporary modification applies only to claims processed under 
parts 404 and 416 of our regulations; it does not apply to claims 
processed under part 405 of our regulations, which concerns only 
disability claims filed in the Boston region on or after August 1, 
2006. Parts 404 and 416 of our regulations concern disability cases in 
every area outside the Boston region and non-disability cases in every 
location.
    Generally, when a claim is filed for Social Security disability 
benefits or SSI payments based on disability or blindness, a State 
agency makes the initial and reconsideration disability determinations 
for us. An ALJ conducts a hearing after we have made a reconsideration 
determination. Under this final rule, attorney advisors in our hearing 
offices whom we designate may conduct certain prehearing proceedings 
and, where appropriate, issue decisions that are wholly favorable to 
claimants and any other party to the hearing.
    Attorney advisors have performed these duties in the past. On June 
30, 1995, we announced final rules establishing the attorney advisor 
program for a limited period of 2 years. 60 FR 34126 (1995). The 
program's success prompted us to extend the program several times, 
until it finally ended in April 2001. (62 FR 35073 (June 30, 1997), 63 
FR 35515 (June 30, 1998), 64 FR 13677 (March 22, 1999), 64 FR 51892 
(September 27, 1999)).
    The number of requests for hearings that we have received has 
significantly increased in recent years, and we expect that trend to 
continue because of the projected increase in the number of disability 
claims as the baby boomers move into their disability-prone years. In 
light of our current and projected workload, we plainly must do 
everything that we can to reduce the number of cases awaiting a 
hearing. This final rule is an important part of our ongoing effort to 
decide cases more efficiently and timely.
    This final rule will allow us to expedite the processing of cases 
pending at the hearing level without affecting a claimant's right to a 
hearing before an ALJ. The attorney advisor's conduct of certain 
prehearing proceedings will not delay the scheduling of a hearing 
before an ALJ. If the prehearing proceedings are not concluded before 
the hearing date, the case will be sent to the ALJ unless a decision 
wholly favorable to the claimant and all other parties is in process, 
or the claimant and all other parties to the hearing agree in writing 
to delay the hearing until the prehearing proceedings are completed.
    Prehearing proceedings may be conducted by an attorney advisor 
under this final rule if one of the following criteria is met: New and 
material evidence is submitted, there is an indication that additional 
evidence is available, there is a change in the law or regulations, or 
there is an error in the file or some other indication that a wholly 
favorable decision could be issued. We will mail the attorney advisor's 
decision to all parties. The notice of decision will state the basis 
for the decision and advise the parties that an ALJ will dismiss the 
hearing request unless a party requests to proceed with the hearing 
within 30 days after the date the notice of the decision of the 
attorney advisor was mailed.
    These procedures will remain in effect for a period not to exceed 2 
years from the effective date of this final rule, unless we terminate 
or extend them by publication of a final rule in the Federal Register.

Public Comments

    On August 9, 2007, we published an interim final rule with a 
request for comments. (72 FR 44763). Although the interim final rule 
became effective on that date, we also provided the public with a 60-
day comment period, which closed on October 9, 2007. We received timely 
comments from one individual and two professional organizations. We 
carefully considered all the comments. Because some of the comments 
were lengthy, we have summarized and paraphrased them below. However, 
we have tried to present all of the commenters' views accurately and to 
respond to all of the significant issues raised by the comments that 
were within the scope of this rule. We have not responded to comments 
that were outside the scope of the interim final rule. The individual 
commenter and one of the organizational commenters supported the 
changes. We appreciate this support.
    In addition to submitting comments on its own behalf, the second 
organizational commenter also included, within its comment letter, 
comments made by individual ALJs in its constituency. Although we refer 
primarily to the comment letter from this organization below, we did 
carefully consider all of the comments included in the organization's 
letter, and some of the comments we summarize below are actually from 
individual members of the organization.
    Comment: The first organizational commenter, which expressed strong 
support for the changes, noted that the changes should not negatively 
impact the decisionmaking process for cases that are heard by ALJs. The 
second organizational commenter did not support the interim final rule. 
This commenter expressed concern that ALJ productivity would fall. The 
commenter said that we would be using our ``most experienced and gifted 
writers'' to write the easiest decisions, leaving the hardest decisions 
to be written by our least experienced staff. The second commenter also 
referred to a 2002 General Accounting Office report entitled 
``Disappointing Results From SSA's Efforts to Improve the Disability 
Claims Process Warrant Immediate Attention'' (``GAO report''), 
indicating that our own management had made the same observation.\1\
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    \1\ GAO 02-322, February 27, 2002, available at http://www.gao.gov/new.items/d02322.pdf. See p. 23.
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    This commenter also stated that we had made a number of 
``unverified programmatic assumptions,'' including that:
     The rule would not impose net aggregate delay to claims 
processing and would not exacerbate the aging of pending claims,
     The rule would result in fully developed claims ready for 
ALJ hearing, and
     An ALJ, upon receiving a case the attorney advisor 
determines should be heard, would have little need to do additional 
development of evidence or prehearing review.
    The commenter indicated that these assumptions were contradicted by 
our past experience, prior studies and reports, and our current 
staffing needs. The commenter believed that, given our limited 
resources, there was an

[[Page 11351]]

``unbridgeable gulf'' between the case processing realities we face and 
the restoration of a temporary program that the commenter believed 
would waste resources.
    Response: The primary purpose of the attorney advisor program is to 
help us process more efficiently the backlog of cases we are facing at 
the hearing level, given the realities of our current staffing and 
budget. Commissioner Astrue has recognized and testified in Congress 
that ALJs are ``achieving a record high production rate,'' yet backlogs 
continue to grow at the hearing level.\2\ Plainly, we need to take 
decisive steps to address this situation.
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    \2\ Testimony before the Senate Finance Committee, May 23, 2007, 
available at: http://www.socialsecurity.gov/legislation/testimony_052307.htm.
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    This program is only one tool among several we are now using, or 
planning to use, to reduce the waiting time for claimants who have 
requested hearings.\3\ We believe that the attorney advisor program is 
especially important because it helps us to identify individuals who 
are disabled and who should not have to appear at a hearing in order 
for us to decide their case.
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    \3\ For our current, complete plan, see ``Plan to Reduce the 
Hearings Backlog and Improve Public Service at the Social Security 
Administration,'' September, 13, 2007, available at: http://www.socialsecurity.gov/hearingsbacklog.pdf.
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    Because of the provisions for prehearing proceedings in Sec. Sec.  
404.942 and 416.1442 and in our internal procedures implementing the 
attorney advisor program, we expect that ALJs will be able to decide 
more readily those cases that attorney advisors review but do not 
allow. This is because attorney advisors will obtain more evidence in 
some cases and those cases will be ready for an ALJ hearing sooner than 
they otherwise would be, and because the attorney advisors will review 
and recommend development of additional evidence in others. The 
attorney advisors will also provide ALJs with an analysis of the issues 
in cases in which they are unable to issue wholly favorable decisions, 
which will assist the ALJs who subsequently review the case. Also, 
under this final rule, the conduct of prehearing proceedings by 
attorney advisors will generally not delay the scheduling or holding of 
hearings, unless a decision wholly favorable to the claimant and all 
other parties is in process, or the claimant and all other parties to 
the hearing agree in writing to delay the hearing until the prehearing 
proceedings are completed.
    Only certain attorney advisors are permitted to participate in this 
program. Our internal instructions provide that only Hearing Office GS-
13 Senior Attorney Advisors, Supervisory Attorney Advisors who are 
Hearing Office Directors, Supervisory Attorney Advisors who are Group 
Supervisors, and attorneys at the GS-13 level and above in the regional 
offices of our Office of Disability Adjudication and Review are 
authorized to issue fully favorable decisions under the interim final 
rule. These same individuals will be authorized to issue decisions 
under this final rule. Our internal operating instructions also provide 
that the attorney advisors who participate in this program will 
continue to draft decisions for ALJs, as assigned by local hearing 
office management. Our instructions also allow the management of each 
local hearing office to decide the amount of time attorney advisors 
will devote to the adjudication of wholly favorable decisions. We 
believe that these modifications to the program are improvements over 
the way we administered the program from 1995 to 2001. Therefore, we 
anticipate that, with these modifications, ALJs should have sufficient 
qualified and experienced staff to draft their decisions, conduct 
research, and perform other tasks.
    Nevertheless, we are aware that we are shifting valuable resources 
to this task, even if only part-time, and that there is a potential 
that this shift will affect ALJs' ability to issue their decisions. 
Based on our experience using this procedure in the past, we do not 
believe this will happen, but as we noted earlier in this preamble, we 
intend to monitor the program closely and will make changes to it, 
including ending it if necessary, if it does not meet our expectations.
    We address the additional, specific concerns of the second 
organizational commenter in the responses that follow.
    Comment: The second organizational commenter also expressed concern 
that the interim final rule was intended to ``pay down'' the backlog. 
This commenter also submitted a number of individual ALJ comments and 
concerns about allowance rates. Some individual ALJs also believed that 
the allowance rate would increase. One ALJ believed that the outcomes 
would vary by office. This ALJ stated that in offices in which the 
attorney advisors are more conservative than the ALJs, they would waste 
time reviewing cases that they would not allow, and the program would 
have no beneficial effect and would delay case processing. In offices 
in which attorney advisors and the ALJs are ``similarly disposed to 
granting certain cases without a hearing,'' the allowance rate would 
not change and the program would again have no beneficial effect. In 
offices in which the attorneys are ``more sympathetic'' to the 
claimants than the ALJs, ``many, many cases'' would be paid without 
merit.
    Response: We do not intend by this final rule to ``pay down'' the 
backlog of cases awaiting a hearing, nor do we expect the allowance 
rate to increase. Rather, we are providing our hearing offices with 
additional adjudicative capacity to more quickly decide some cases in 
which we can make a wholly favorable decision without a hearing. This 
will provide better service to claimants and, we expect, will help us 
to make faster decisions on all pending hearing requests and to reduce 
the number of cases in our hearing offices.
    Therefore, we expect that the overall allowance rate at the hearing 
level will not change. The purpose of this program is to issue 
decisions more quickly in cases in which we can make a favorable 
decision without the time and expense of holding an ALJ hearing, and to 
improve the efficiency of our hearing office operations given our 
current staffing and budget. As we explain in more detail in response 
to another comment below, we plan to carefully monitor attorney advisor 
decisions for quality to ensure that they are making wholly favorable 
decisions only in appropriate cases.
    Comment: The same commenter expressed concern about the accuracy, 
quality, and legal sufficiency of attorney advisor decisions. The 
commenter referred to a statement in the 2002 GAO report indicating 
that there were ``mixed'' findings on the accuracy of attorney 
advisors' decisions the first time we implemented this program. The 
commenter also referred to an internal Agency report issued by our 
Office of Quality Performance (OQP) in 2001,\4\ which found that 
decisions issued by attorney advisors under the program were supported 
by substantial evidence 78 percent of the time.
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    \4\ In 2001, OQP was called the Office of Quality Assurance and 
Performance Assessment.
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    Response: We are aware of concerns that were raised regarding the 
quality of decisions made by attorney advisors under our prior rule, 
and we intend to vigorously monitor the quality of attorney advisor 
decisions under this final rule. We will randomly select attorney 
advisor decisions for review by OQP after they have been issued and the 
decision has been effectuated. We will also perform quality reviews of 
attorney advisor decisions before they are issued. We will share the 
information from these reviews with our attorney advisors and use it 
for training purposes to continually improve the program.

[[Page 11352]]

    We must also put the data cited by the commenter in perspective. 
The GAO reported results from two studies: One conducted in OQP and the 
other by the Appeals Council. The reviews in OQP were conducted by ALJs 
and reported ``support'' rates; that is, the rate at which the 
reviewing ALJs agreed that the attorney advisors' decisions were 
supported by substantial evidence. The GAO indicated that ``the quality 
of decisions made by [attorney advisors] generally increased over the 
period of the initiative, though falling short of the quality of 
decisions made by the ALJs.'' \5\ However, in fact, while OQP did 
report a support rate for attorney advisor decisions of 78 percent, 
they also reported a support rate for ALJ on-the-record decisions (that 
is, decisions made based on the written information in the case file 
without holding a hearing) of 81 percent, essentially the same as for 
attorney advisors. Moreover, another Agency internal report issued by 
OQP in December 2000 showed an 80 percent support rate for attorney 
advisor decisions in fiscal year 2000. The GAO reported that the study 
by the Appeals Council indicated that the quality of decisions made by 
attorney advisors was ``comparable'' to those made by the ALJs.\6\
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    \5\ GAO report, p. 23.
    \6\ Id.
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    Finally, we are confident that these ``most experienced and gifted 
writers,'' to use the commenter's own description, will produce legally 
sufficient decisions.
    Comment: The same commenter reported an individual ALJ's comment 
asserting that during the first attorney advisor program the lack of 
sufficient attorneys to write the difficult decisions for cases heard 
by ALJs resulted in a case writing backlog, and that many attorney 
advisors could not keep up with the flow of cases to be reviewed.
    Response: Although this final rule is substantively the same as the 
rule we published on June 30, 1995, our internal procedures address 
current operational issues, including our limited staff. They provide 
each hearing office with the flexibility to assign work to attorney 
advisors according to the needs and workloads of the office. Since our 
intent is to use this program to help reduce the backlog of cases and 
to provide better and faster service to the public, we will monitor it 
carefully and immediately take action if we find that it is having the 
effect the commenter was concerned about--the opposite of what we hope 
to achieve.
    Comment: The same commenter reported an individual ALJ's comment 
that attorney advisors made the most errors in cases involving mental 
impairments and that such cases are generally not ``readily susceptible 
to on-the-record decisions.''
    Response: We have already noted that we will carefully monitor the 
quality of attorney advisor decisions, and will take appropriate action 
if we find that there are special problems with the adjudication of 
cases involving mental impairments. Otherwise, we do not agree with the 
commenter. We believe that there are no inherent features of cases 
involving mental impairments that would make them any less susceptible 
to on-the-record decisions than any other cases.
    Comment: The same commenter reported an individual ALJ's concern 
that attorney advisors would ``waste a lot of time'' reviewing cases 
that will not result in wholly favorable decisions.
    Response: We do not agree that a prehearing review of cases will be 
a ``waste of time'' even if the attorney advisor is not able to make a 
wholly favorable decision. Our internal instructions for these rules 
permit attorney advisors to obtain evidence from the claimant or the 
claimant's representative and require them to provide the ALJ with an 
analysis of the issues in the case, including an explanation of why a 
wholly favorable decision could not be made on the record. Our 
instructions also require the attorney advisor to make recommendations 
to the ALJ for additional development of evidence to complete the 
record. We believe that, far from being a ``waste'' of time, these 
actions will help ALJs to prepare cases for a hearing and to more 
quickly decide cases that require a hearing after prehearing review.
    Comment: The same commenter reported individual ALJ concerns that 
attorney advisor independence will be compromised by managerial 
oversight, performance evaluations, and ``bonuses'' received by 
attorney advisors. The individual ALJs were also concerned that the 
attorney advisor program will ``erode the integrity of the independent 
due process hearing and the role of the ALJ in that process.''
    Response: Our attorney advisors have always been subject to 
``managerial oversight,'' and they will continue to be under this final 
rule. We do not expect the implementation of this final rule to 
adversely affect their ability to perform their jobs in an appropriate 
manner.
    Regarding the integrity of the independent due process hearing and 
the role of the ALJ in that process, this final rule augments the 
process by authorizing attorney advisors to make wholly favorable 
decisions in claims for disability benefits when there is no need for a 
hearing. Section 205(b) of the Social Security Act (the Act) requires 
the Commissioner to make findings of fact, and decisions as to the 
rights of any individual applying for a payment. The Act further 
provides that, upon request by any such individual (or upon request by 
a wife, divorced wife, widow, surviving divorced wife, surviving 
divorced mother, surviving divorced father, husband, divorced husband, 
widower, surviving divorced husband, child, or parent who makes a 
showing in writing that his or her rights may be prejudiced by any 
decision), the Commissioner shall give the individual reasonable notice 
and opportunity for a hearing. The final rules explicitly preserve the 
individual's right to a hearing which will be conducted by an ALJ if 
the individual is dissatisfied with the decision made by the attorney 
advisor.
    Finally, we note that similar concerns were expressed in 1995. Our 
prior experience using attorney advisors to make decisions from 1995 to 
2001 shows that concerns like those characterized above were unfounded. 
As was the case under our prior rules, attorney advisors who are 
authorized to conduct prehearing proceedings and issue wholly favorable 
decisions under the final rule will not conduct a hearing. Hearings 
will continue to be conducted by ALJs in appropriate cases.
    Comment: The same commenter reported an individual ALJ's concern 
that there would be an increased potential for abuse, and even fraud, 
since attorney advisors are not subject to the same financial 
disclosure rules that ALJs are.
    Response: We do not believe that this rule will increase the 
likelihood of fraud or abuse because attorney advisors are not required 
to submit financial reports. We know of no fraud or abuse resulting 
from the prior rules. However, we will handle any alleged fraud or 
abuse under our existing guidelines and procedures.
    Comment: The same commenter reported individual ALJs' concerns that 
ALJs would have to take on more ``clerical functions,'' and that ALJs 
``will be forced to write more and more of their own decisions.''
    Response: We do not intend for ALJs to take on any additional 
``clerical functions'' under this final rule, and we do not expect 
implementation of this final rule to affect the ability of our decision 
writers to write decisions on behalf of the ALJs.
    Comment: The same commenter indicated that we had rushed to this 
rule without asking for comments first.

[[Page 11353]]

    Response: We disagree with the commenter's observation that we 
should have first published a notice of proposed rulemaking with 
respect to this rule. We explained in detail in the preamble to the 
interim final rule why we determined that notice-and-comment rulemaking 
was both unnecessary and contrary to the public interest under the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). Therefore, we 
properly determined that we had good cause to publish a final rule 
without requesting prior public comment. (72 FR at 44764). However, we 
also recognized that the rule we published in August 2007 concerned a 
subject about which the public was likely to be interested. As a 
result, we made the rule we published in August 2007 an interim final 
rule, and we requested public comments regarding the changes we made. 
Our actions in this regard are consistent with both the APA and good 
rulemaking practice.
    Comment: The same commenter made a number of alternative 
recommendations for us to consider instead of the attorney advisor 
program, such as the implementation of a ``Government Representative 
Program.'' The commenter also recommended modifications to the attorney 
advisor program.
    Response: We did not adopt the comments suggesting alternatives to 
the attorney advisor program because they were outside the scope of 
this rulemaking proceeding. The other comments addressed our internal 
procedures rather than the substance of the interim final rule. In our 
responses to prior comments, we have discussed our internal procedures, 
and explained how we believe those procedures provide adequate 
safeguards to address the concerns that the commenter raised.
    Comment: The same commenter reported an individual ALJ's 
recommendation that the final rule require that the attorney advisors 
be limited to reviewing, developing the record, and drafting 
recommended ``on the record'' wholly favorable decisions for an ALJ to 
either sign such decisions or hear such cases.
    Response: We did not adopt this comment suggesting an alternative 
to the attorney advisor program because it is outside the scope of this 
rulemaking proceeding.
    Therefore, for all the reasons stated above, we are adopting the 
interim final rule without change.

Regulatory Procedures

Executive Order 12866, as Amended

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this final rule meets the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Accordingly, it was subject to OMB review. We also have determined that 
this rule meets the plain language requirement of Executive Order 
12866, as amended.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities as it affects 
only individuals. Therefore, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    This rule will impose no additional reporting or recordkeeping 
requirements requiring OMB clearance.

Federalism Impact and Unfunded Mandates Impact

    We have reviewed this rule under the threshold criteria of 
Executive Order 13132 and the Unfunded Mandates Reform Act and have 
determined that it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, on the distribution of power and responsibilities among the 
various levels of government, or on imposing any costs on State, local, 
or tribal governments. This rule does not affect the roles of the 
State, local, or tribal governments.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure; Blind, Disability benefits; 
Old-age, Survivors, and Disability insurance; Reporting and 
recordkeeping requirements; Social Security.

20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability 
benefits; Public assistance programs; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

    Dated: January 23, 2008.
Michael J. Astrue,
Commissioner of Social Security.

0
Accordingly, the interim final rule amending subpart J of part 404 and 
subpart N of part 416 of chapter III of title 20 of the Code of Federal 
Regulations, which was published at 72 FR 44763 on August 9, 2007, is 
adopted as a final rule without change.

[FR Doc. E8-3945 Filed 2-29-08; 8:45 am]
BILLING CODE 4191-02-P