[Federal Register Volume 75, Number 141 (Friday, July 23, 2010)]
[Proposed Rules]
[Pages 43110-43114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18198]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 300

[REG-139343-08]
RIN 1545-B171


User Fees Relating to Enrollment and Preparer Tax Identification 
Numbers

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

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SUMMARY: This document contains proposed amendments to the regulations 
relating to the imposition of certain user fees on certain tax 
practitioners. The proposed regulations establish a new user fee for 
individuals who apply for or renew a preparer tax identification number 
(PTIN). The proposed regulations affect individuals who apply for or 
renew a PTIN. The charging of user fees is authorized by the 
Independent Offices Appropriations Act of 1952.

DATES: Written or electronic comments must be received by August 23, 
2010. Outlines of topics to be discussed at the public hearing 
scheduled for Tuesday, August 24, 2010, at 10 a.m. must be received by 
Monday, August 23, 2010.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-139343-08), Room 
5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand-delivered Monday through 
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
139343-08), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue, NW., Washington, DC, or sent electronically via the Federal 
eRulemaking Portal at http://www.regulations.gov (IRS REG-139343-08). 
The public hearing will be held in the Auditorium of the Internal 
Revenue Building, 1111 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
Emily M. Lesniak at (202) 622-4940; concerning cost methodology, Eva J. 
Williams at (202) 435-5514; concerning submission of comments, the 
public hearing, or to be placed on the building access list to attend 
the public hearing, Richard A. Hurst at 
[email protected] or (202) 622-7180 (not toll-free 
numbers).

SUPPLEMENTARY INFORMATION: 

Background

    Section 330 of title 31 of the United States Code authorizes the 
Secretary of the Treasury to regulate the practice of representatives 
before the Treasury Department. Pursuant to section 330 of title 31, 
the Secretary has published regulations governing practice before the 
IRS in 31 CFR part 10 and reprinted the regulations as Treasury 
Department Circular No. 230 (Circular 230). Circular 230 is 
administered by the IRS Office of Professional Responsibility (OPR).

User Fee for PTINs

    Section 6109 of the Internal Revenue Code (Code) authorizes the 
Secretary to prescribe regulations for the inclusion of a tax return 
preparer's identifying number on a return, statement, or other document 
required to be filed with the IRS. Section 6109(c) further authorizes 
the Secretary ``to require such information as may be necessary to 
assign an identifying number to any person.'' As currently prescribed 
in regulations, the identifying number of a tax return preparer who is 
an individual is the tax return preparer's social security number (SSN) 
or alternative number as prescribed by the IRS.
    Proposed regulations under section 6109 (REG-134235-08) were 
published in the Federal Register (75 FR 14539) on March 26, 2010, and 
provide that, for returns or claims for refund filed after December 31, 
2010, the identifying number of a tax return preparer is the 
individual's PTIN or such other number prescribed by the IRS in forms, 
instructions, or other appropriate guidance. The proposed regulations 
under section 6109 require a tax return preparer who prepares all or 
substantially all of a return or claim for refund of tax after December 
31, 2010 to have a PTIN. The proposed regulations also state that the 
IRS will provide through other guidance (including forms and 
instructions) guidance regarding how to apply for a PTIN or other 
prescribed preparer identifying number, for the regular renewal of a 
PTIN or other prescribed preparer identifying number, and for the 
payment of a user fee. Only attorneys, certified public accountants, 
enrolled agents, and registered tax return preparers will be eligible 
to apply for a PTIN. The requirements to become a registered tax return 
preparer will be provided in future Circular 230 guidance.
    A third party vendor will administer the PTIN application and 
renewal process and will charge a reasonable fee that is independent of 
the user fee charged by the government. The vendor will develop a web-
based database that individuals will use to apply for or renew a PTIN 
and will process paper PTIN applications. The database also will be 
used for applications to become registered tax return preparers, to 
renew the registered tax return preparers' status, to self-certify 
continuing professional education credits for registered tax return 
preparers, and to pay applicable user fees.
    Proposed Sec.  300.9 establishes a $50 user fee to apply for or 
renew a PTIN. The $50 user fee is based on an annual PTIN renewal 
period, and the procedures for renewing a PTIN will be provided in 
other guidance, including forms and instructions. The user fee is 
nonrefundable regardless of whether the applicant receives a PTIN.
    PTINs were previously issued to tax return preparers solely for the 
convenience of the tax return preparers, providing an alternative to 
using the tax return preparers' social security numbers. Requiring 
registration through the use of PTINs will enable the IRS to better 
collect and track data on tax return preparers. This data will allow 
the IRS to track the number of persons who prepare returns, track the 
qualifications of those who prepare returns, track the number of 
returns each person prepares, and more easily locate and review returns 
prepared by a

[[Page 43111]]

tax return preparer when instances of misconduct are detected.
    The user fee to apply for or renew a PTIN recovers the costs that 
the government incurs to administer the PTIN application process. These 
costs include the development and maintenance of the IRS information 
technology system that interfaces with the vendor and the development 
and maintenance of internal applications that will have the capacity to 
process and administer the anticipated increase in applications for a 
PTIN. It is anticipated that the number of individuals requesting PTINs 
will increase to as many as 1.2 million individuals, and all 
individuals who receive PTINs will be required to renew their PTINs. 
The anticipated increase in demand for PTINs will require the IRS to 
expend more resources. The user fee will recover the cost of IRS 
customer service support activities, which include Web site development 
and maintenance and call center staffing to respond to questions 
regarding PTIN usage and renewal. The user fee also will recover costs 
for personnel, administrative, and management support needed to 
evaluate and address tax compliance issues of individuals applying for 
and renewing a PTIN, to investigate and address conduct and suitability 
issues, and otherwise support and enforce the programs that require an 
individual to apply for and renew a PTIN.
    The IRS currently issues PTINs to tax return preparers without 
charging a user fee. The PTIN application, issuance, and renewal 
process, however, will become significantly more expansive and 
intricate with the implementation of the registered tax return preparer 
program. Federal tax compliance checks will be performed on all 
individuals who apply for or renew a PTIN. Suitability checks will be 
performed. The IRS will further investigate individuals when the 
compliance or suitability check suggests that the individual may be 
unfit to practice before the IRS. These checks were not previously 
performed as a prerequisite to obtaining a PTIN.
    Additionally, the IRS will establish and implement a 
reconsideration process for individuals who apply to become a 
registered tax return preparer and are denied a PTIN upon initial 
application or renewal. The IRS will incur costs to apply existing 
Circular 230 procedures when those individuals who are certified public 
accountants, attorneys, enrolled agents, or registered tax return 
preparers are denied renewal of a PTIN.

Coordination With Other User Fees

    Additional user fees related to the programs for regulating 
enrolled agents, enrolled retirement plan agents, and registered tax 
return preparers will be established in future regulations as those 
programs are implemented. These future regulations will address user 
fees associated with taking the registered tax return preparer 
examination and providing continuing education programs. The user fee 
for taking a registered tax return preparer examination will recover 
the costs to the government for creating, administering, and reviewing 
the examination. The user fee for providing continuing education 
programs will recover the costs to the government for the review, 
approval, and oversight of continuing education providers to ensure 
their compliance with program requirements for continuing education 
programs. The vendor also will charge a reasonable fee to take the 
registered tax return preparer examination.
    Future regulations also will coordinate the enrollment and renewal 
user fees imposed on enrolled agents and enrolled retirement plan 
agents with the PTIN user fees because the costs to the government to 
process an enrollment application are substantially the same as the 
costs to the government to process a PTIN application. For example, the 
IRS generally may conduct only a single background check and compliance 
check for an individual who applies to become an enrolled agent and 
applies to obtain a PTIN, and therefore the enrollment application fee 
and the PTIN application fee must be coordinated to prevent the 
collection of excessive fees. It is currently anticipated that future 
regulations will require enrolled agents to obtain a PTIN and pay the 
associated application or renewal fee, in which case the enrollment and 
renewal fees for enrolled agents will be substantially reduced.

Effective/Applicability Dates

    These regulations reorganize the effective dates for the user fees 
found in Treasury Regulations part 300. Currently, all of the user fee 
effective dates are contained in Sec.  300.0 paragraph (c). This 
reorganization relocates the effective date sections to the appropriate 
regulation implementing each user fee. This relocation will simplify 
the process for updating the effective dates as the user fee 
regulations are revised.

Authority

    The charging of user fees is authorized by the Independent Offices 
Appropriations Act (IOAA) of 1952, which is codified at 31 U.S.C. 9701. 
The IOAA authorizes agencies to prescribe regulations that establish 
charges for services provided by the agency. The charges must be fair 
and must be based on the costs to the government, the value of the 
service to the recipient, the public policy or interest served, and 
other relevant facts. The IOAA provides that regulations implementing 
user fees are subject to policies prescribed by the President; these 
policies are currently set forth in the Office of Management and Budget 
Circular A-25, 58 FR 38142 (July 15, 1993) (the OMB Circular).
    The OMB Circular encourages user fees for government-provided 
services that confer benefits on identifiable recipients over and above 
those benefits received by the general public. Under the OMB Circular, 
an agency that seeks to impose a user fee for government-provided 
services must calculate the full cost of providing those services. In 
general, a user fee should be set at an amount that allows the agency 
to recover the full cost of providing the special service, unless the 
Office of Management and Budget grants an exception.
    Pursuant to the guidelines in the OMB Circular, the IRS has 
calculated its cost of providing services under the PTIN application 
and renewal process. The government will charge the full cost of 
administering these programs and will implement the proposed user fees 
under the authority of the IOAA and the OMB Circular.

Proposed Effective/Applicability Date

    The Administrative Procedure Act provides that substantive rules 
will not be effective until thirty days after the final regulations are 
published in the Federal Register (5 U.S.C. 553(d)). Final regulations 
may be effective prior to thirty days after publication if the 
publishing agency finds that there is good cause for an earlier 
effective date.
    The IRS is implementing the recommendations in Publication 4832, 
``Return Preparer Review'', which was published on January 4, 2010, to 
be effective for the 2011 Federal tax filing season (January-April 
2011). The IRS and the Treasury Department find that there is good 
cause for these regulations to be effective upon the publication of a 
Treasury decision adopting these rules as final regulations in the 
Federal Register.

Special Analyses

    It has been determined that this notice of proposed rulemaking is a 
significant regulatory action as defined in Executive Order 12866.

[[Page 43112]]

    It has been determined that an initial regulatory flexibility 
analysis is required for this notice of proposed rulemaking under 5 
U.S.C. 603. This analysis is set forth under the heading ``Initial 
Regulatory Flexibility Analysis.''
    Pursuant to section 7805(f) of the Code, this notice of proposed 
rulemaking has been submitted to the Chief Counsel for Advocacy of the 
Small Business Administration for comment on its impact on small 
business.

Initial Regulatory Flexibility Analysis

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (5 U.S.C. chapter 6) (RFA) requires the agency ``to 
prepare and make available for public comment an initial regulatory 
flexibility analysis'' that will ``describe the impact of the proposed 
rule on small entities.'' See 5 U.S.C. 603(a). Section 605 of the RFA 
provides an exception to this requirement if the agency certifies that 
the proposed rulemaking will not have a significant economic impact on 
a substantial number of small entities. A small entity is defined as a 
small business, small nonprofit organization, or small governmental 
jurisdiction. See 5 U.S.C. 601(3) through (6). The IRS and the Treasury 
Department conclude that the proposed rule, if promulgated, will have a 
significant economic impact on a substantial number of small entities. 
As a result, an initial regulatory flexibility analysis is required.

Description of the Reasons Why Action by the Agency Is Being Considered

    The IRS and the Treasury Department are implementing regulatory 
changes that increase the oversight of the tax return preparer industry 
based upon findings and recommendations made by the IRS in Publication 
4832, ``Return Preparer Review,'' which was published on January 4, 
2010. These regulatory changes include implementing a registered tax 
return preparer program and requiring all individuals who prepare all 
or substantially all of a tax return or claim for refund to use a PTIN 
as an identifying number. Except as provided in any transitional 
period, only attorneys, certified public accountants, enrolled agents, 
or registered tax return preparers may apply for a PTIN. Thus, only 
attorneys, certified public accountants, enrolled agents, and 
registered tax return preparers will be eligible to prepare all or 
substantially all of a tax return or claim for refund. By limiting the 
individuals who may prepare all or substantially all of a tax return or 
claim for refund to individuals who have a PTIN, the IRS is providing a 
special benefit to the individuals who obtain a PTIN. There are costs 
to the IRS that are associated with processing a PTIN application and 
providing the special benefits associated with the PTIN.
    Future regulations will establish additional user fees related to 
the enrolled agent and enrolled retirement plan agent program, and 
registered tax return preparer program. The additional user fees will 
recover the costs to the government that result from providing the 
special benefits associated with taking the registered tax return 
preparer examination and providing continuing education programs. The 
cost to the government for administering and reviewing the registered 
tax return preparer examination will be recovered in a user fee for 
taking the registered tax return preparer examination. The cost to the 
government to verify compliance with requirements for continuing 
education programs will be recovered in a user fee for qualifying 
continuing education programs. Each continuing education provider may 
charge a fee to attend a qualified continuing education program. The 
third party vendor also will charge a reasonable fee to take a 
registered tax return preparer examination.

A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule

    The objective of the proposed regulations is to recover the costs 
to the government associated with providing the special benefits that 
an individual receives upon applying for or renewing a PTIN. These 
costs include the development and maintenance of the IRS information 
technology system that interfaces with the vendor; the development and 
maintenance of internal applications; IRS customer service support 
activities, which include development and maintenance of an IRS Web 
site and call center staffing; and personnel, administrative, and 
management support needed to evaluate and address tax compliance 
issues, investigate and address conduct and suitability issues, and 
otherwise support and enforce the programs that require individuals to 
apply for or renew a PTIN. The OMB Circular encourages user fees when 
special benefits are conferred on identifiable recipients. Individuals 
who obtain a PTIN receive the ability to prepare all or substantially 
all of a tax return or claim for refund. The ability to prepare all or 
substantially all of a tax return or claim for refund is a special 
benefit.
    The legal basis for these requirements is contained in section 9701 
of title 31.

A Description of and, Where Feasible, an Estimate of the Number of 
Small Entities To Which the Proposed Rule Will Apply

    The proposed regulations affect all individuals who want to become 
a registered tax return preparer under the new oversight rules in 
Circular 230. Only individuals, not businesses, can practice before the 
IRS or become a registered tax return preparer. Thus, the economic 
impact of these regulations on any small entity generally will be a 
result of applicants and registered tax return preparers owning a small 
business or a small entity employing applicants or registered tax 
return preparers.
    The proposed regulations further affect all individual tax return 
preparers who are required to apply for or renew a PTIN. Only 
individuals, not businesses, can apply for or renew a PTIN. Thus, the 
economic impact of these regulations on any small entity generally will 
be a result of an individual tax return preparer who is required to 
apply for or renew a PTIN owning a small business or a small business 
otherwise employing an individual tax return preparer who is required 
to apply for or renew a PTIN to prepare all or substantially all of a 
tax return or claim for refund.
    The appropriate NAICS codes for the registered tax return preparer 
program and PTINs are those that relate to tax preparation services 
(NAICS code 541213), other accounting services (NAICS code 541219), 
offices of lawyers (NAICS code 541110), and offices of certified public 
accountants (NAICS code 541211). Entities identified as tax preparation 
services and offices of lawyers are considered small under the Small 
Business Administration size standards (13 CFR 121.201) if their annual 
revenue is less than $7 million. Entities identified as other 
accounting services and offices of certified public accountants are 
considered small under the Small Business Administration size standards 
if their annual revenue is less than $8.5 million. The IRS estimates 
that approximately 70 to 80 percent of the individuals subject to these 
proposed regulations are tax return preparers operating as or employed 
by small entities.

[[Page 43113]]

A Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record

    No reporting or recordkeeping requirements are projected to be 
associated with this proposed regulation.

An Identification, to the Extent Practicable, of All Relevant Federal 
Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule

    The IRS is not aware of any Federal rules that duplicate, overlap, 
or conflict with the proposed rule.

A Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities

    The IOAA authorizes the charging of user fees for agency services, 
subject to policies designated by the President. The OMB Circular 
implements presidential policies regarding user fees and encourages 
user fees when a government agency provides a special benefit to a 
member of the public. As Congress has not appropriated funds to the 
registered tax return preparer program or PTIN application process, 
there are no viable alternatives to the imposition of user fees.
    While the IRS previously issued PTINs to tax return preparers 
without charging a user fee, the registered tax return preparer program 
and the issuance of the new regulations under section 6109 will 
increase the number of PTIN applications to as many as 1.2 million 
applications and significantly increase the intricacy of the 
application process. Additionally, PTINs were previously issued solely 
for the convenience of tax return preparers to provide an alternative 
to using the tax return preparers' social security numbers as an 
identifying number on prepared returns. PTINs will now be used to 
collect and track data on tax return preparers. This data will provide 
important benefits to the IRS, such as allowing the IRS to track the 
number of persons who prepare returns, track the qualifications of 
those persons who prepare returns, track the number of returns each 
person prepares, and, when instances of misconduct are detected, locate 
and review returns prepared by a specific tax return preparer.
    This anticipated increase in PTIN applications and the revised 
purpose of a PTIN will require the IRS to develop and maintain a Web 
site and train call center staff to respond to PTIN-related questions. 
Further, the IRS will now perform Federal tax compliance checks and 
perform suitability checks prior to the issuance of a PTIN. Previously, 
neither of these checks was performed before a PTIN was issued. When 
the initial compliance and suitability checks suggest that the 
individual applying for a PTIN may not be fit to practice before the 
IRS, the IRS will conduct an investigation. For individuals who are 
found unfit to receive a PTIN, the IRS will develop and implement a 
reconsideration process. Similarly, the IRS will provide due process 
procedures for those individuals who are certified public accountants, 
attorneys, enrolled agents, or registered tax return preparers and are 
denied renewal of their PTIN.
    Thus, due to the increased costs to the government to process the 
application for a PTIN, the anticipated increase in PTIN applications, 
and the lack of appropriated funds, there is no viable alternative to 
imposing a user fee.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written (a signed original and eight 
(8) copies) or electronic comments that are submitted timely to the 
IRS. The IRS and Treasury Department request comments on the clarity of 
the proposed regulations and how they can be made easier to understand. 
All comments that are submitted by the public will be made available 
for public inspection and copying.
    A public hearing has been scheduled for Tuesday, August 24, 2010, 
beginning at 10 a.m. in the Auditorium of the Internal Revenue 
Building, 1111 Constitution Avenue, NW., Washington, DC. Due to 
building security procedures, visitors must enter at the Constitution 
Avenue entrance. All visitors must present photo identification to 
enter the building. Because of access restrictions, visitors will not 
be admitted beyond the immediate entrance area more than 30 minutes 
before the hearing starts. For information about having your name 
placed on the building access list to attend the hearing, see the FOR 
FURTHER INFORMATION CONTACT section of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who 
wish to present oral comments at the hearing must submit written or 
electronic comments and an outline of the topics to be discussed and 
the time to be devoted to each topic by Monday, August 23, 2010. A 
period of 10 minutes will be allocated to each person for making 
comments.
    An agenda showing the scheduling of the speakers will be prepared 
after the deadline for receiving outlines has passed. Copies of the 
agenda will be available free of charge at the hearing.

Drafting Information

    The principal author of these regulations is Emily M. Lesniak, 
Office of the Associate Chief Counsel (Procedure and Administration).

List of Subjects in 26 CFR Part 300

    Reporting and recordkeeping requirements, User fees.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 300 is proposed to be amended as follows:

PART 300--USER FEES

    Paragraph 1. The authority citation for part 300 continues to read 
in part as follows:

    Authority: 31 U.S.C. 9701.

    Par. 2. Section 300.0 is amended by
    1. Adding paragraph (b)(9).
    2. Removing paragraph (c).
    The addition reads as follows:


Sec.  300.0  User fees; in general.

* * * * *
    (b) * * *
    (9) Applying for a preparer tax identification number.
    Par. 3. Section 300.1 is amended by adding paragraph (d) to read as 
follows:


Sec.  300.1  Installment agreement fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning March 16, 1995, except that the user fee for entering into 
installment agreements on or after January 1, 2007, is applicable 
beginning January 1, 2007.
    Par. 4. Section 300.2 is amended by adding paragraph (d) to read as 
follows:


Sec.  300.2  Restructuring or reinstatement of installment agreement 
fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning March 16, 1995, except that the user fee for restructuring or 
reinstatement of an installment agreement on or after January 1, 2007, 
is applicable beginning January 1, 2007.
    Par. 5. Section 300.3 is amended by adding paragraph (d) to read as 
follows:

[[Page 43114]]

Sec.  300.3  Offer to compromise fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning November 1, 2003.
    Par. 6. Section 300.4 is amended by adding paragraph (d) to read as 
follows:


Sec.  300.4  Special enrollment examination fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning November 6, 2006.
    Par. 7. Section 300.5 is amended by adding paragraph (d) to read as 
follows:


Sec.  300.5  Enrollment of enrolled agent fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning November 6, 2006.
    Par. 8. Section 300.6 is amended by adding paragraph (d) to read as 
follows:


Sec.  300.6  Renewal of enrollment of enrolled agent fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning November 6, 2006.
    Par. 9. Section 300.7 is amended by adding paragraph (d) to read as 
follows:


Sec.  300.7  Enrollment of enrolled actuary fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning January 22, 2008.
    Par. 10. Section 300.8 is amended by adding paragraph (d) to read 
as follows:


Sec.  300.8  Renewal of enrollment of enrolled actuary fee.

* * * * *
    (d) Effective/applicability date. This section is applicable 
beginning January 22, 2008.
    Par. 11. Section 300.9 is added to read as follows:


Sec.  300.9  Fee for obtaining a preparer tax identification number.

    (a) Applicability. This section applies to the application for and 
renewal of a preparer tax identification number pursuant to 26 CFR 
1.6109-2(d).
    (b) Fee. The fee to apply for or renew a preparer tax 
identification number is $50 per year, which is the cost to the 
government for processing the application for a preparer tax 
identification number and does not include any fees charged by the 
vendor.
    (c) Person liable for the fee. The individual liable for the 
application or renewal fee is the individual applying for and renewing 
a preparer tax identification number from the IRS.
    (d) Effective/applicability date. This section will be applicable 
on the date of publication of a Treasury decision adopting these rules 
as final regulations in the Federal Register.

Steven T. Miller,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 2010-18198 Filed 7-21-10; 4:15 pm]
BILLING CODE 4830-01-P