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Part 32. Published Guidance and Other Guidance to Taxpayers

Chapter 1. Chief Counsel Regulation Handbook

Section 6. Review, Approval, and Publication of Regulations

32.1.6  Review, Approval, and Publication of Regulations

32.1.6.1  (08-11-2004)
Coordination with Division Counsel and IRS Offices

  1. The Office of Associate Chief Counsel is solely responsible for drafting and preparing published guidance. Division Counsel may assist the Associate Chief Counsel in developing published guidance. The drafting team should coordinate all projects with each Division Counsel office through their publication coordinator or designee. Each Division Counsel publication coordinator or designee is responsible for further coordination within its respective Operating Division. Any comments made by Division Counsel should be made by an employee with authority to speak on behalf of, and bind, the Division Counsel.

  2. When work is initiated on a project, the drafting team should email each Division Counsel publication coordinator or designee within 30 days after the opening of the project on TECHMIS to alert the Division Counsel that the project has been opened. See CCDM 32.1.6.2 for additional email recipients. The email should contain:

    • Description of the issue to be addressed by the project

    • Taxpayers affected

    • Reasons for publication

    • Target publication date (and any other timing considerations)

    • Name and telephone number of drafting attorney

  3. Each Division Counsel publication coordinator or designee must promptly respond as to whether their office wants to be involved in the development of the project. Alternatively, the Division Counsel publication coordinator or designee may indicate that their office does not need further information about the project.

  4. The initial coordination does not preclude the Division Counsel publication coordinator or designee from reconsidering its choice at a later time, and requesting further involvement in (or no further information about) the project. Similarly, the Assistant/Associate Chief Counsel office may later request a higher level of involvement by the Division Counsel office.

  5. If a Division Counsel office requests involvement in the development of a project, the respective reviewer and Division Counsel publication coordinator or designee will determine the scope of the participation as soon as possible. This involvement will vary but, at a minimum:

    • Send the Division Counsel publication coordinator or designee all issues and policy memoranda and invite the Division Counsel publication coordinator or designee to attend any preliminary meetings to discuss the issues and policy memoranda (see CCDM 32.1.3.4)

    • Invite the Division Counsel publication coordinator or designee to briefings of Treasury, Counsel, or IRS executives (see CCDM 32.1.6.5)

    • Send the Division Counsel publication coordinator or designee a copy of the green circulation draft (see CCDM 32.1.6.7)

32.1.6.2  (08-11-2004)
Coordination with Associate Offices and Counsel for the National Taxpayer Advocate

  1. In addition to the coordination with Division Counsel and IRS Offices described in CCDM 32.1.6.1 above, when work is initiated on a project, the drafting team should email each Associate Office and the Counsel for the National Taxpayer Advocate within 30 days after the opening of the project on TECHMIS to alert those offices that the project has been opened. The email should contain the information described in CCDM 32.1.6.1.

32.1.6.3  (08-11-2004)
Reconciliation Procedures

  1. Absent extraordinary circumstances, reconciliation should begin by the drafting team requesting reconsideration and providing the reasons for its disagreement to the office/person that provided the advice or assistance. If that office/person adheres to its views after reconsideration, the drafting team must follow the advice or assistance or elevate the request for reconsideration to the next higher level.

  2. A request for reconsideration of branch-level advice should be elevated to the Associate Chief Counsel of the office within which the branch is located, as applicable. A request for reconsideration at a higher level within the National Office should be made by the appropriate branch or the appropriate Associate Chief Counsel.

  3. When coordination with another branch or office is completed, the drafting team should make a record for the legal file containing the name of the person with whom it coordinated, their office or branch symbols, and the date coordinated. This record should also reflect any unresolved disagreement. If the Associates are unable to reconcile their views, the matter should be elevated to the Deputy Chief Counsel or the Chief Counsel. The Associates will reconcile differing views and will ensure that the package that goes forward contains an analysis of all significant issues.

32.1.6.4  (08-11-2004)
Review of Drafts

  1. During the development of the regulation, various participants in the regulatory process review drafts.

32.1.6.4.1  (08-11-2004)
Review by FRL

  1. After the first working draft of the regulation is completed and has been approved by the branch reviewer, and prior to the Assistant/Associate Chief Counsel review, the drafting team must provide a copy of the draft to the assigned FRL for review. The drafting team must also provide a copy to the FRL for review before circulating the draft regulation in green circulation and in signature package. The drafting team should not send the regulation forward in green circulation and in signature package until the regulation has been reviewed by the FRL and the FRL’s changes have been made to the regulation.

32.1.6.4.2  (08-11-2004)
Review within the Associate Chief Counsel Offices

  1. The branch reviewer or other designated reviewer initially reviews all regulation drafts. The Assistant/Associate Chief Counsel or any other front office reviewers also review regulation drafts. Any reviewer may ask other Assistant/Associate offices to review the draft and provide comments.

  2. When the Assistant/Associate Chief Counsel office or offices have completed their review of the regulation, the drafting attorney prepares the " Green" Circulation Draft. See CCDM 32.1.6.7.

32.1.6.4.3  (08-11-2004)
Review by OTP Attorney-Advisors

  1. Depending on the complexity and significance of the issues, the OTP attorneys may begin participation or review early in the drafting stage. If not already involved, during the period of Assistant/Associate Chief Counsel front office review of regulation drafts, one or more OTP attorneys may review drafts.

32.1.6.5  (08-11-2004)
Briefings

  1. Significant regulation projects may be briefed to the Chief Counsel or Deputy Chief Counsel, Associate Chief Counsel, the Commissioner/Deputy Commissioner (or other IRS executives), and to Treasury executives. Consult with the Associate front office to obtain any special procedures for these briefings. The drafting team should prepare a Conference Report after any briefings to memorialize the decisions reached.

  2. If a Division Counsel office has requested to be involved in the development of the project, invite the Division Counsel publication coordinator or designee to briefings of Counsel, Treasury, or IRS executives.

32.1.6.6  (08-11-2004)
Precirculation Draft

  1. A precirculation draft is a preliminary draft that is circulated among members of the drafting team (including OTP attorneys, when appropriate) for review and comments. The drafting team may produce many precirculation drafts before the regulation is distributed outside the initiating Associate Chief Counsel office. Each precirculation draft should contain a draft identification block (see CCDM 32.1.4.3) so that the members of the drafting team can easily distinguish the current from prior drafts.

32.1.6.7  (08-11-2004)
"Green" Circulation Draft

  1. The "green" circulation draft is a draft approved for distribution outside the initiating Associate Chief Counsel office to other Counsel and IRS offices that have been involved in the project, or will be affected by it, for their review and comment. Circulation drafts are reviewed and approved by, or on behalf of, the initiating Associate Chief Counsel prior to circulation. The circulation draft is also reviewed by the FRL prior to circulation. The drafting team should not send the regulation forward in green circulation until the regulation has been reviewed by the FRL and the FRL’s changes have been made to the regulation.

  2. If the drafting team revised the document in response to comments to the circulation draft, the drafting attorney should send the revised draft and a compare version (showing all the changes that were made to the circulation draft) to the offices/persons who may be interested in the changes. If significant changes are made to the green circulation draft, it may be necessary to distribute a new circulation draft before preparing the signature package. If the drafting team did not make the suggested substantive changes, the drafting team should contact the office/person who suggested the change and attempt to resolve any differences utilizing the reconciliation procedures described in CCDM 32.1.6.3.

32.1.6.7.1  (08-11-2004)
Executive Summary

  1. The drafting team should prepare an Executive Summary for regulations. The Executive Summary generally should be no longer than a page. The Executive Summary may be in bullet format. The Executive Summary should not include the detail and background that more appropriately should be included in the Background Memorandum described in CCDM 32.1.6.8.2. The Executive Summary should include:

    • Description of the guidance,

    • Why/how guidance was initiated,

    • What taxpayers are impacted by the guidance,

    • Names of persons with whom the drafting attorney coordinated the guidance, and the outcome of that coordination,

    • Impact on pending litigation and coordination with Department of Justice, as appropriate,

    • Whether the guidance is controversial (either internally or externally), and

    • Critical dates, if any, for publication (For example, the date that a temporary regulation will expire, the deadline for filing season readiness, ABA meeting, end of the calendar year, etc. The target publication date is not a critical date.).

  2. The Executive Summary should be sent together with the " green" circulation draft of regulations. However, the drafting team should not send the Executive Summary to TIGTA at the time of the green circulation. The Executive Summary should be updated to reflect the results of coordination (including the names of the persons with whom the project was coordinated), and included in the orange folder containing the "pink" signature package.

  3. The Executive Summary should be made part of the official file for the guidance project. Since it is a predecisional document that is used to obtain approval for publication, however, the Executive Summary generally may be withheld (or redacted) under the deliberative process privilege if the file is the subject of a FOIA or discovery request. See Exhibit 32.1.6-1, Sample Executive Summary.

32.1.6.7.2  (08-11-2004)
Circulation Draft Routing and Distribution

  1. Ordinarily, the drafting team should distribute the circulation draft via email with a brief message explaining that the attached draft regulation is being circulated for general comment and the due date for comments. Accommodate any executive who wants a paper copy of the circulation draft. The Deputy Chief Counsels have requested to receive a paper copy, as well as an email copy, of the green distribution. The drafting team should attach a Circulation Draft routing slip, printed on green paper, to any paper copy distributed.

  2. Although the distribution list for the circulation draft will vary by regulation, the general distribution list includes:

    • Office of Treasury Inspector General for Tax Administration (TIGTA) [email address: Counsel.Office@tigta.treas.gov.

    • Deputy Assistant Secretary (Regulatory Affairs)

    • Tax Legislative Counsel, Benefits Tax Counsel, or International Tax Counsel, as appropriate

    • Appropriate TLC Attorney/Accountant Advisor(s)

    • Assistant to the Commissioner

    • Deputy Chief Counsel (Technical) or Deputy Chief Counsel (Operations), as appropriate

    • Other executives and key front office attorneys in Counsel and IRS (other than LM, SB, W&I and TE/GE) offices that will be or could be affected by the regulation project, including all Associate Chief Counsel and their publication coordinators or designees

    • Other executives and other key attorneys in Counsel and IRS offices that were involved in drafting the document

    • Division Counsel, their publication coordinators or designees, and any Operating Division executive designated by a Division Counsel

    • Any internal distribution within the initiating Associate Chief Counsel office

    • Federal Register Liaison

    • Chief, Appeals and key staff

    • National Taxpayer Advocate and Counsel to the National Taxpayer Advocate

    • Director, Tax Forms and Publications and Technical Advisor to the Director, Tax Forms and Publications

    • Director, National Public Liaison

    • Management and Program Analyst, Office of Privacy

  3. Division Counsel offices review circulation drafts and generally handle all coordination with Operating Division offices. Occasionally, the drafting team should coordinate directly with the affected Operating Division.

    Example of a Green Circulation Draft Email Message:

    Subject: Green Circulation Draft of Regulations for Comments and Executive Summary
    CASE-MIS Number: REG-123456-02
    Target Publication Date: October 31, 2002
    Please provide comments by:September 20, 2002
    Regulation Project Summary: [include a very brief summary, including any relevant background]
    Please send comments to: Jane B. Attorney
      Office:
      Room:
      Phone:
      FAX

    Note:

    See Exhibit 32.1.6-2, Sample Green Circulation Draft Routing Slip (which is always printed on green paper, when used)

32.1.6.7.3  (08-11-2004)
Special Note for TEGE Regulation Projects Regarding Circulation Drafts

  1. For certain regulation projects originating within the Division Counsel/Associate (Tax Exempt and Government Entities), the drafting team must submit a circulation draft to another federal agency, for example, the Department of Labor or the Pension Benefit Guaranty Corporation. The extent and timing of this coordination is determined by the nature of the project. The drafting team should discuss with the front office any questions about this process including whether it applies to a particular regulation project.

32.1.6.7.4  (08-11-2004)
Due Date for Review Responses

  1. Unless the initiating Associate Chief Counsel office requests comments by an earlier date, offices have 14 calendar days to review initial green circulation drafts and provide any comments (whether an ANPRM, NPRM, or a TD). Unless the initiating Associate Chief Counsel office requests comments by an earlier date, offices generally have 7 calendar days to review subsequent circulation drafts.

32.1.6.8  (08-11-2004)
"Pink" Signature Package

  1. The signature package contains a group of documents, submitted to the Federal Register, through which the Commissioner (or Deputy Commissioner for Services and Enforcement), Chief Counsel, and Assistant Secretary for Tax Policy authorize publication of the ANPRM, NPRM, or TD in the Federal Register.

  2. The drafting team should prepare a signature package once it is reasonably certain that all comments received from the green circulation draft have been considered and the regulation document will not change. The regulation must be submitted to the FRL for review before including it in the signature package. The drafting team should not send the regulation forward in signature package until the regulation has been reviewed by the FRL and the FRL’s changes have been made to the regulation.

  3. If a regulation is subject to significant time pressure (for example, when temporary regulations are about to sunset, see CCDM 32.1.1.2.3), it may be necessary to distribute the green circulation draft and the signature package simultaneously.

  4. Separate signature packages should be prepared for a temporary regulation and the cross-reference NPRM. The pink signature package routing slip for each signature package should reference the related temporary or cross-reference NPRM, as applicable.

  5. The Associate office preparing and reviewing the signature package may have established its own review procedures for regulation projects. For example, the Associate office may wish to see background information not required in the formal signature package (such as comments received on the green circulation draft, and a compare version of the green circulation draft and the signature package draft). The drafting team should ensure that it complies with its Associate office’s procedures for signature packages.

  6. The signature package delivered to the Commissioner’s office should include a "sign here" post-it note next to the signature space on the original print of the regulation.

  7. The signature package moves through the Associate’s and Chief Counsel’s offices and the Commissioner’s office in a Chief Counsel Correspondence orange folder. The signature package should be removed from the orange folder when it is delivered to Treasury.

32.1.6.8.1  (08-11-2004)
Contents of Signature Package

  1. A signature package consists of:

    • The regulation signature package routing slip and clearance sheet, printed on pink paper (the pink sheet)

    • A single-sided copy of the regulation for signature (remove the draft identification block from regulation before printing)

    • The plain language summary (see CCDM 32.1.6.8.3)

    • The Executive Summary (see CCDM 32.1.6.7.1)

    • The Background Memorandum (if appropriate) (see CCDM 32.1.6.8.2)

    • A Regulatory Flexibility Act checklist (see CCDM 32.1.5.4.7.5.4.7)

    • Five additional copies (double-sided) of the regulation for any reviewer or signer who wants a copy. These copies are courtesy copies for reviewers and signers to keep and to use to reflect changes to the document.

  2. The signature package moves through the Associate’s and Chief Counsel offices with a diskette. Any person who makes changes to the signature package document on the diskette should email the changes to the drafting attorney or provide the drafting attorney with a marked-up paper copy reflecting the changes. The marked-up copy reflecting the changes should be returned to the drafting attorney to ensure that the drafting attorney is aware of the changes to the signature package document and to ensure that the correct version of the regulation is published in the FR. The drafting attorney should keep all changes made to the signature package document in the legal file and should reflect the name of the person making the changes and the date of the change on the signature document. See Exhibit 32.1.6-3, Sample Pink Signature Package Routing Slip

32.1.6.8.2  (08-11-2004)
Background Memorandum

  1. The drafting team should include a short background memorandum for each regulation in signature package. The background memorandum should discuss any cases affected by the regulation that are not discussed in the preamble, any potential controversy that may arise from the regulation, any effective date concerns, whether the Operating Divisions agree with the regulation, and any comments not incorporated in the regulation. The background memorandum will be used by the executives to readily identify any issues that should be considered before clearing the regulation.

32.1.6.8.3  (08-11-2004)
Plain Language Summary

  1. The drafting team must prepare a plain language summary for each stage of a regulation project (ANPRM, NPRM, TEMP, final regulation). The Publications and Regulations Branch posts the plain language summary of each regulation to the Tax Regulations section of the IRS web site (see www.irs.gov/regs).

  2. The plain language summary explains, preferably in six sentences or less, the issue addressed by the regulation, but does not summarize the regulation. The target reader is someone who is not familiar with the tax law. Therefore, the drafting team should avoid references to Code sections and terms of art. The summary alerts the taxpayer to whether he or she is affected by the regulation, whether he or she needs more information, or whether he or she needs to consult a tax advisor. At the end of the plain language summary, add the reference number (the CASE-MIS ID number for an ANPRM or NPRM or the TD number for a TEMP or final regulation) and the date the regulation is published in the Federal Register.

    Example:

    Integrated Auxiliary of a Church
    While most tax-exempt organizations are required to file a report with the IRS, churches and some affiliated organizations are not required to meet this reporting requirement. These regulations explain the test that an affiliated organization must meet to be considered an integrated auxiliary of a church and thus exempt from the reporting requirement. REG-123456-02. Published [insert publication date].

32.1.6.8.4  (08-11-2004)
Clearance Chain for Signature Package

  1. After the drafting attorney assembles and proofreads the signature package, the drafting attorney and reviewer sign the pink sheet. Hand-carry the signature package to each office in the clearance chain for signature. The clearance chain may vary by regulation and by Associate office but generally includes the following:

    • Drafting attorney

    • Branch reviewer

    • Assistant/Associate Chief Counsel

    • Deputy Chief Counsel (Technical) or Deputy Chief Counsel (Operations), as appropriate

    • Chief Counsel

    • Assistant to the Commissioner

    • Commissioner/Deputy Commissioner for Services and Enforcement

    • Treasury Attorney-Advisor

    • Tax Legislative Counsel, Benefits Tax Counsel, or International Tax Counsel, as appropriate

    • Assistant Secretary (Tax Policy)

  2. After each office within Counsel and the IRS has signed the pink sheet, that office calls the Associate office to pick up the signature package and deliver the signature package to the next level of clearance. The Associate office, in its discretion, may contact the drafting attorney to pick up the signature package and move the package forward. The pink sheet should reflect the phone number of the Associate office to call for pick up. The pink sheet should also include the drafting attorney’s name and private phone number. Generally, the OTP attorney moves the document through the process at Treasury.

32.1.6.8.5  (08-11-2004)
Informational Copy to Division Counsel and TIGTA

  1. If the Division Counsel office requested involvement in the development of the project, the drafting team should email an informational copy of the regulation document in the signature package and a compare version of the green circulation draft to the signature package draft to the Division Counsel publication coordinator or designee. Division Counsel, however, is not included on the formal clearance of the signature package (see CCDM 32.1.6.8.4) and may not comment further on the signature package. All comments from Division Counsel should be considered and resolved during the green circulation stage.

  2. The drafting team should also provide TIGTA an informational copy of the regulation when the regulation is sent to Treasury in Signature Package.

32.1.6.8.6  (08-11-2004)
Special Note for TEGE Regulation Projects Regarding Signature Packages

  1. For certain regulation projects originating within the Division Counsel/Associate (Tax Exempt and Governmental Entities), the drafting team must submit a signature package to the Tax Exempt and Government Entities Commissioner office for clearance. A drafting team in TEGE should consult the branch or front office with questions about this process, including whether the process applies to the particular regulation project.

32.1.6.8.7  (08-11-2004)
Special Instructions for Document Submission to Treasury

  1. After the Commissioner/Deputy Commissioner for Services and Enforcement has signed the regulation and it is returned to the drafting attorney, the signature package is submitted to Treasury. Before submitting the signature package to Treasury, the drafting attorney should photocopy the signature page and place the photocopy in the legal file. This documents that the Commissioner/Deputy Commissioner for Services and Enforcement signed the regulation. To submit the regulation to Treasury, the drafting attorney can either:

    1. Give the signature package and five copies of the regulation to the Publications and Regulations Branch who will hand deliver the package to the Treasury Department Information Resource Center, Room 5037, Main Treasury Building, to be processed and sent to the Treasury attorney, or

    2. Personally hand-deliver the signature package and five copies of the regulation to the Treasury Department Information Resource Center, Main Treasury Building, for distribution to the appropriate Treasury attorney. Drafting attorneys delivering the regulation package to the Treasury attorney must first call the Treasury reviewer to be placed on the Treasury access list, and then the drafting attorney should take the regulation package to the Treasury Department Information Resource Center for processing.

  2. Drafting attorneys who hand deliver the document must give a copy of the pink sheet to the FRL assigned to the regulation and provide the FRL with the date the attorney delivered the signature package to Treasury.

32.1.6.9  (08-11-2004)
Administrative Procedure Following Treasury Approval

  1. After the Assistant Secretary (Tax Policy) signs the pink sheet (for TDs, ANPRMs, and NPRMs) and the regulation (for TDs only), the regulation must clear the General Counsel and the Executive Secretariat. After clearance, Treasury returns the signed regulation and pink sheet to the drafting attorney. The drafting attorney should put the signed pink sheet in the legal file.

32.1.6.9.1  (08-11-2004)
Schedule Hearing Room for NPRM

  1. After Treasury approves an NPRM and notice of public hearing, the drafting team should contact the Publications and Regulations Branch to have a specialist assigned to the regulation to schedule and coordinate the hearing. If Treasury may approve the regulation during a holiday week, the drafting team should contact the Publications and Regulations Branch several days before the expected approval date to allow the specialist sufficient time to schedule a hearing room.

  2. The drafting team must add the comments due date, hearing date, and requests to speak and outline due date to the DATES caption of the preamble. Add the hearing location (room number) to the ADDRESS caption. Add the Regulation Specialist contact to the FOR FURTHER INFORMATION CONTACT caption.

  3. The drafting attorney should inform the Publications and Regulations Branch Specialist if the Associate office anticipates that an unusually large number of people will request to speak at, or otherwise attend, the public hearing.

32.1.6.9.2  (08-11-2004)
Advise by Email of Pending Publication of Regulation

  1. Once the regulation has been approved by Treasury and has been forwarded to the Publications and Regulations Branch for submission to the OFR, the drafting team should inform the following addressees by email of the pending publication of the regulation:

    • The Chief Counsel

    • Deputy Chief Counsel (Technical) or Deputy Chief Counsel (Operations), as appropriate

    • All Special Counsel, Senior Counsel, and Senior Legal Counsel to the Chief Counsel

    • All Associate Chief Counsel and Deputy Associate Chief Counsel

    • All Division Counsel

    • The Assistant to the Commissioner

    • The Tax Legislative Counsel (or Benefits Tax Counsel or International Tax Counsel, as appropriate)

    • Any other Treasury representatives involved in the project

    • Any other recipients determined by the Associate office

32.1.6.10  (08-11-2004)
Expedited Review Procedures

  1. The Office of Chief Counsel and Treasury’s Office of Tax Policy have renewed the pilot program to review certain published guidance projects on an expedited basis for the 2003-2004 business plan year. The program is available for "bullet regulations" and other forms of published guidance. This program will be reevaluated after the end of the business plan year (June 30, 2004) to determine if it should be extended as a permanent program.

  2. The Expedited Guidance procedures do not diminish the policy role of Treasury in the published guidance process, rather they are designed to

    1. Encourage published guidance projects on issues that do not present significant tax policy issues but are important to tax administration, and

    2. Expedite Treasury review and approval of published guidance on those issues.

  3. Projects with more significant tax policy issues may be included at the discretion of the Associate office and Treasury.

  4. Each Associate Chief Counsel and Division Counsel Office will establish a process for soliciting and selecting projects for consideration for expedited guidance. A project does not need to be on the business plan for it to be considered under the expedited guidance program. To propose expedited published guidance projects to Treasury, each Associate Chief Counsel and Division Counsel Office should consider all sources including, without limitation, the public, Operating Divisions, letter rulings, and technical advice.

  5. Each Associate office that identifies a potential expedited guidance project, prior to proposing the project to Treasury, will consult with any other Associate office that would be expected to provide support in the project.

32.1.6.10.1  (08-11-2004)
Treasury Approval of Item as Expedited Guidance

  1. If Treasury does not agree to treat the project as an expedited guidance project, the project will be considered part of regular guidance. If a project is not accepted as an expedited guidance project, the Associate office shall advise the chair of the Rulings Group and the Deputy Chief Counsel (Technical) (or Deputy Chief Counsel (Operations), as appropriate).

  2. If Treasury agrees to treat the project as an expedited project, the Associate office will notify the chair of the Expedited Rulings Group and indicate how long the project is estimated to take.

32.1.6.10.2  (08-11-2004)
Drafting Expedited Guidance

  1. If a bullet regulation project is approved for handling under the expedited guidance program, the Associate office will draft the published guidance following the procedures in this Handbook. In addition, however, interim drafts and advance notice of meetings must be provided to the responsible Treasury Counsel and Attorney-Advisor. In revising drafts, the project will not be delayed while waiting for Treasury input. At all times, however, Treasury will be kept informed of the project’s progress. The Associate office will reflect or otherwise respond to comments made by the responsible Treasury Counsel or Attorney-Advisor; however, the Associate office is not required to solicit and obtain any comments from Treasury before circulating revised drafts of the guidance.

32.1.6.10.3  (08-11-2004)
Expedited Rulings Group

  1. The Expedited Rulings Group (ERG) will consist of at least three Associates chaired by a counsel from the immediate Office of Chief Counsel. When the Associate office approves the draft regulation, it will be submitted to the ERG for review. The ERG will meet regularly to review and approve draft expedited guidance. Participation of Treasury Counsel (or the Deputy Assistant Secretary (Regulatory Affairs) ("DASRA" ) or Deputy Treasury Counsel) in these meetings is optional with Treasury. As long as the responsible Treasury Counsel and Attorney-Advisor are notified of any meeting of the ERG and provided with copies of the items to be considered at the meeting at least 72 hours in advance, the ERG may proceed with the meeting even if the Treasury representatives cannot attend the meeting.

  2. If a draft of an expedited project reflects substantial changes from the last version submitted to Treasury, or does not reflect substantial comments offered by Treasury, it will be circulated to Treasury for review and comment at least 72 hours before it is submitted to the ERG. The responsible Treasury Counsel and Attorney-Advisor also will be notified if there is a significant change in the proposed outcome of a project or the rationale for that outcome.

32.1.6.10.4  (08-11-2004)
Final Approval of Expedited Guidance Projects

  1. If a bullet regulation project is approved by the ERG for submission to Treasury as expedited published guidance, the ERG will submit the project to the Chief Counsel and Deputy Chief Counsel (Technical) (or Deputy Chief Counsel (Operations), as appropriate). If approved by the Chief Counsel, the project will be sent to Treasury for clearance with copies to the DASRA and the responsible Treasury Counsel and Attorney-Advisor.

    Note:

    Procedures for clearing projects with the Commissioner’s office remain the same under this program.

  2. After submission of an expedited published guidance project to Treasury, it is expected that only limited, minor changes would be made with the approval of the Associate office or the Deputy Chief Counsel (Technical) (or Deputy Chief Counsel (Operations), as appropriate), with notice to the DASRA and the responsible Treasury Counsel and Attorney-Advisor.

  3. The Assistant Secretary (Tax Policy) may, within 14 days of receipt, personally contact the Chief Counsel to request:

    • Suspension of the project,

    • Modification of the project before publication, or

    • Submission of the project to a joint briefing.

  4. Even if no objection is received from the Assistant Secretary (Tax Policy) within 14 days, the regulation may not be published until approved by the Commissioner and the Assistant Secretary. However, if the regulation is neither approved or objected to by the Assistant Secretary (Tax Policy) within the 14-day period, the Associate Chief Counsel should contact the chairperson of the ERG for appropriate follow up.

32.1.6.11  (08-11-2004)
Publication in the Federal Register

  1. The drafting attorney provides the FRL with the following:

    • A copy of the signed pink sheet

    • The signed regulation

    • Three copies of the regulation

    • The regulation on a diskette that is labeled with the CASE-MIS project ID (ANPRM or NPRM)

    Note:

    Place only one document on the diskette. Remove all "hidden" codes that allow recipients to view prior changes to the document by following instructions in CCDM 32.1.6.11.2.3.

  2. After the FRL proofs the regulation for any required changes, the FRL

    1. Inserts the name of the signing official(s), the date the regulation was approved, and, any modification to the title of any approving official (for example, by adding "Acting" ) on the signed original regulation document, and

    2. Prepares a letter to the OFR certifying that the diskette contains a true electronic copy of the document and asking for filing and publication of the regulation.

  3. The FRL delivers the regulation and related documents to the staff of the Publications and Regulations Branch (or returns the regulation to the drafting attorney for delivery to the staff of the Publications and Regulations Branch). The FRL notifies (via email) the drafting attorney and the other FRLs of the date the regulation was sent to the OFR.

  4. The Publications and Regulations Branch delivers the documents to the OFR where it is reviewed for compliance with Federal Register publication requirements. If there are minor errors, the FRL will make " pen and ink" changes. For more substantial changes, the OFR may request revised pages from the FRL, who will request the pages from the drafting attorney.

32.1.6.11.1  (08-11-2004)
Filing and Publication

  1. After the OFR reviews the regulation for compliance with its format and editorial requirements and resolves any problems with the FRL, the OFR assigns a filing date and publication date and notifies the FRL of those dates. Regulations are generally effective on the publication date, unless otherwise stated (see CCDM 32.1.5.7.4.5). The OFR usually files the document at 8:45 a.m. within two working days after receipt, and publishes the document in the FR the next working day after the filing date. For example, if the OFR receives a regulation by 2:00 p.m. Thursday, the OFR typically files the regulation at 8:45 a.m. on Monday and publishes it on Tuesday. Regulations submitted when the OFR has a backlog of regulations from the IRS or other agencies, may take longer to get reviewed, and filing and publication may be delayed.

  2. When filed, the regulation is available to the public in the OFR reading room.

32.1.6.11.1.1  (08-11-2004)
Immediate/Emergency Filing and Accelerated Publication

  1. In extraordinary circumstances the IRS may request immediate/emergency filing at the OFR. A request for immediate/emergency filing is a request that the OFR review and file the regulation immediately, ahead of other regulations and documents that the IRS and other agencies already have pending at the OFR. Extraordinary circumstances warranting a request for immediate filing are limited to the public’s urgent need for guidance in the regulation. The IRS might request immediate/emergency filing when, for example, there is a need for guidance to have an immediate effective date. The Associate Chief Counsel (or Deputy) must approve a request for immediate filing. The drafting team must inform the FRL of the need and reason for immediate filing. The FRL prepares a letter to the OFR requesting immediate/emergency filing stating the reason for the request. This letter is made available for public inspection. The OFR decides whether to grant each request for immediate/emergency filing.

  2. Immediate/emergency filing accelerates the filing date, but not the publication date. The drafting team must make a separate request for accelerated publication, if needed. Like immediate/emergency filing, extraordinary circumstances, based on the public’s urgent need, must justify any request for an expedited publication date. The OFR must obtain clearance from the Government Printing Office for accelerated publication. There will be at least one full business day between an immediate/emergency filing date and the publication date, even if the publication date is accelerated.

32.1.6.11.1.2  (08-11-2004)
Obtaining Filing and Publication Dates and TD Number

  1. The FRL notifies the drafting attorney in advance of the filing and publication dates. If the regulation is a TD, the FRL also provides the drafting attorney with the TD number. The FRL provides any dates to be inserted in the regulation document.

32.1.6.11.2  (08-11-2004)
After Obtaining Filing and Publication Dates

  1. Once the FRL notifies the drafting attorney of the filing and publication dates, the drafting attorney must

    1. Make any changes requested by the OFR or FRL,

    2. Delete all instructions to insert dates that are contained in the document (such as [INSERT DATE 90 DAYS AFTER PUBLICATION OF THIS DOCUMENT IN THE FEDERAL REGISTER]) and type in the actual dates as provided by the OFR, and

    3. Add the TD number (if applicable).

  2. After making the above changes to the document, the drafting attorney must print the document. See Exhibit 32.1.6-4, Instructions for Processing Regulations.

32.1.6.11.2.1  (08-11-2004)
Prepare Filing Date Submissions to the Publications and Regulations Branch

  1. By 8:45 a.m. on the filing date, the drafting attorney delivers the following documents to the Publications and Regulations Branch:

    • 14 copies of the regulation with the filing and publication date cover sheet on top (see CCDM 32.1.6.11.2.2)

    • 2 copies of the regulation on separate diskettes. Remove hidden codes prior to delivery to the Publications and Regulations Branch ( see CCDM 32.1.6.11.2.3)

    • Forms 12971 and 12972 (see CCDM 32.1.6.11.2.4)

    • A copy of the completed Regulatory Flexibility Act Checklist (the original checklist should be placed in the legal file)

  2. By 11:00 a.m. on the filing date, the drafting attorney delivers the following documents to the Publications and Regulations Branch:

    • Completed and finalized Congressional Review Act (CRA) forms. See CCDM 32.1.6.11.2.5, Exhibit 32.1.6-5 – Congressional Review Act Form, and Exhibit 32.1.6-6 – Instructions For Completing The Congressional Review Act Form, and

    • Email the following separate documents as separate documents for posting on the irs.gov web site: regulation and plain language summary ( see CCDM 32.1.6.11.2.6).

  3. If a final regulation finalizes a temporary regulation due to expire (sunset) within 5 business days, the drafting team must alert the Publications and Regulations B