The regulations in 7 CFR, chapter III, and 9 CFR, chapter I, subchapter D, require inspection, laboratory testing, certification, or quarantine of certain plants, plant products, animals, animal products, or other commodities intended for importation into, or exportation from, the United States.

When these services must be provided by an employee of Plant Protection and Quarantine (PPQ) on a Sunday or holiday, or at any other time outside the PPQ employee's regular duty hours, the Government charges a fee for the services in accordance with 7 CFR part 354. Under circumstances described in § 354.1(a)(2), this fee may include the cost of commuted traveltime. Section 354.2 contains administrative instructions prescribing commuted traveltime allowances, which reflect, as nearly as practicable, the periods of time required for PPQ employees to travel from their dispatch points and return there from the places where they perform Sunday, holiday, or other overtime duty.

We are amending § 354.2 of the regulations by adding commuted traveltime allowances for travel between Hilo, HI, and five new locations in Hawaii. The amendments are set forth in the rule portion of this document. This action is necessary to inform the public of the commuted traveltime between the dispatch and service locations.

The commuted traveltime allowances appropriate for employees performing services at ports of entry, and the features of the reimbursement plan for recovering the cost of furnishing port of entry services, depend upon facts within the knowledge of the Department of Agriculture. It does not appear that public participation in this rulemaking proceeding would make additional relevant information available to the Department.

Accordingly, pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find upon good cause that prior notice and other public procedure with respect to this rule are impracticable and unnecessary; we also find good cause for making this rule effective less than 30 days after publication of this document in the Federal Register .

This final rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

The number of requests for overtime services of a PPQ employee at the locations affected by this rule represents an insignificant portion of the total number of requests for these services in the United States.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule or the application of its provisions.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

(1) Interstate transfer of peanut acreage. This document also corrects 7 CFR part 1412, published in the Federal Register on October 21, 2002, 67 FR 64751, by authority of the Farm Security and Rural Investment Act of 2002 (“2002 Act”). Part 1412 is entitled “Direct and Counter-Cyclical Program and Peanut Quota Buyout Program,” and provides for direct and counter-cyclical payments for the crop years 2002 through 2007 for a number of crops to provide income support to producers of eligible commodities. The error is in the introductory language in section 1412.703(b) of part 1412, which states, “Notwithstanding paragraph (a) of this section, the average acreage determined under § 1412.701 for a farm may be assigned to a farm in a contiguous county only if either of the following apply:” This correction substitutes the word “state” for “county” in that sentence, as the provisions are directed to special allowance for interstate transfers for peanuts as reflected elsewhere and in the authorizing statute.

(2) Penalties for erroneous certification. This document corrects the regulations for CCC Marketing Assistance Loans and Loan Deficiency Payments for Peanuts, Pulse Crops, Wheat, Feed Grains, Soybeans and Other Oilseeds at 7 CFR Part 1421. The current provisions of Part 1421 were published in the Federal Register on Friday, October 11, 2002 (67 FR 63511). Marketing assistance loans and loan deficiency payments are authorized by title I of the 2002 Act.

This document corrects sections 1421.109 of 7 CFR part 1421 relating to a producer's violation of a loan agreement, and the resulting administrative remedies. Specifically, § 1421.109(e) is corrected so that the amount due for a violation of this provision is based only on the quantity of the commodity “removed or disposed of” and not the “quantity incorrectly certified or the loan quantity removed or disposed.” As to the reference to “quantity incorrectly certified” there can never be less than a full loan repayment as is clear from the circumstances and other provisions in the regulations. Accordingly, this section is corrected by removing that reference. Also, a clarifying comma is added after the word “interest” in § 1421.109(e)(1)(i).

Section 1421.109 is also corrected in paragraph (g) so that, “The county committee may waive the liquidated damages if it determines that the violation was inadvertent, accidental, or unintentional.” instead of “* * * and unintentional.” The word “or” was used here instead of “and” to comport fully with the original and continuing intent of this provision.

These changes are to clarify and correct regulations, and delaying their publication to request public comment is contrary to the public interest. Further, section 1601 of the 2002 Act exempts these changes from notice and comment rulemaking. So that they may apply equally with existing regulations, these changes are effective as of the original filing of the rules implementing the 2002 Act.

On August 29, 2003, the Bureau of Economic Analysis (BEA) published in the Federal Register (68 FR 51942) a notice of proposed rulemaking setting forth revised reporting requirements for the BE-15, Annual Survey of Foreign Direct Investment in the United States. No comments on the proposed rule were received. Thus, the provisions in the proposed rule are adopted without change.

The BE-15, Annual Survey of Foreign Direct Investment in the United States, is mandatory and is conducted annually by the Bureau of Economic Analysis (BEA), U.S. Department of Commerce, under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108)—hereinafter, “the Act.” BEA will send the survey to potential respondents in March of each year; responses will be due by May 31.

BEA will introduce a sampling procedure to help reduce respondent burden for some U.S. businesses. The procedure utilizes the new BE-15(EZ) form; this form provides a few basic indicators for non-sample firms that can be used as a basis for estimating data that they otherwise would have to report on the lengthier BE-15(LF) and BE-15(SF) forms. To bring the annual survey into conformity with the Benchmark Survey of Foreign Direct Investment in the United States-2002, the following changes are being made to the Code of Federal Regulations: (1) Direct that only nonbank majority-owned U.S. affiliates of foreign companies report on the BE-15(LF) long form (minority-owned affiliates will report on the BE-15(SF) short form, or the BE-15(EZ) form, regardless of size); (2) raise the exemption level on the BE-15(LF) long form from $100 million to $125 million (reporting on a given form is required if the affiliate's assets, sales, or net income (or loss) exceed the exemption level); and (3) exempt nonbank subsidiaries or units of U.S. bank or bank holding company affiliates from reporting.

In addition, the following changes are being made to the forms: (1) Add questions to the BE-15 (LF) long form to collect detail on premiums earned and claims paid for U.S. affiliates operating in the insurance industry, and to collect detail on finished goods purchased for resale for U.S. affiliates operating in the wholesale and retail trade industries; (2) in conjunction with increasing the exemption level for reporting on the BE-15(LF) long form, add four items to the short form that will serve to improve estimates of gross product for majority-owned U.S. affiliates—certain realized and unrealized gains and losses, U.S. income taxes, interest received, and interest paid; (3) in conjunction with requiring all minority-owned U.S. affiliates to file on the short form, revise the State Schedule to collect additional detail, by State, for minority-owned U.S. affiliates with activities in more than five States; and (4) to reduce overall respondent burden, drop several questions that BEA feels are no longer of significant analytical interest to the data users.

The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” Section 4(a) of the Act provides that with respect to foreign direct investment in the United States, the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information on international capital flows and other information related to international investment and trade in services, including (but not limited to) such information as may be necessary for computing and analyzing the United States balance of payments, the employment and taxes of United States parents and affiliates, and the international investment and trade in services position of the United States.

In Section 3 of Executive Order 11961, the President delegated authority granted under the Act as concerns direct investment to the Secretary of Commerce, who has redelegated it to BEA.

The annual survey is a sample survey that collects data on the financial structure and operations of nonbank U.S. affiliates of foreign companies needed to update similar data for the universe of U.S. affiliates collected once every 5 years in the BE-12 benchmark survey. The data are used to derive annual estimates of the operations of U.S. affiliates of foreign companies, including their balance sheets; income statements; property, plant, and equipment; external financing; employment and employee compensation; merchandise trade; sales of goods and services; taxes; and research and development activity. The data are needed to measure the size and economic significance of foreign direct investment in the United States, to measure changes in such investment, and to assess its impact on the U.S. economy. Such data are generally found in enterprise-level accounting records of respondent companies. The data are disaggregated by industry of U.S. affiliate, by country and industry of foreign parent or ultimate beneficial owner, and, for selected items, by State.

This final rule does not contain policies with Federalism implications, as that term is defined in E.O. 13132.

This final rule has been determined to be not significant for purposes of E.O. 12866.

Notwithstanding any other provisions of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection displays a currently valid Office of Management and Budget (OMB) Control Number. This final rule covers a collection of information subject to the provisions of the PRA. The OMB has approved this collection and assigned to it OMB Control Number 0608-0034. The collection will display this control number.

The survey is expected to result in the filing of reports from approximately 4,950 U.S. affiliates. The respondent burden for this collection of information is expected to vary from 20 minutes for the smallest and least complex company reporting on the BE-15 Supplement C form to 550 hours for the largest and most complex company reporting on the BE-15(LF) long form, with an average burden of 21.8 hours per response (down from 32 hours for the previous annual survey), including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Total respondent burden for the previous (2001) annual survey was estimated at 128,000 hours. Total respondent burden for this survey is estimated to be 107,900 hours (4,950 responses times 21.8 hours average burden). The decrease of 20,100 hours in the estimated total respondent burden is largely attributable to the changes to the reporting requirements.

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the proposed rule would not have a significant economic impact on a substantial number of small entities as that term is defined in the Regulatory Flexibility Act. The factual basis for the certification was published with the proposed rule. No comments were received regarding the economic impact of the rule. As a result, no final regulatory flexibility analysis was prepared.

Background Where Can I Find General Background Information on the Indian Reservation Roads (IRR) Program, the Relative Need Formula, the Federal Highway Administration (FHWA) Price Trends Report, and the Transportation Equity Act for the 21st Century (TEA-21) Negotiated Rulemaking Process?

The background information on the IRR program, the relative need formula, the FHWA Price Trends Report, and the TEA-21 Negotiated Rulemaking process is detailed in the Federal Register notice dated February 15, 2000 (65 FR 7431).

We are publishing this rule to distribute $25 million of fiscal year 2004 IRR Program funds. This rule sets no precedent for the final rule to be published as required by Section 1115 of TEA-21.

You can find this information in the Federal Register notice dated June 5, 2003 (68 FR 33625).

Upon publication of this rule, the Secretary will distribute only $25 million of fiscal year 2004 IRR program funds based on the current relative need formula used in fiscal years 2000, 2001, 2002 and in the first distribution in fiscal year 2003. We are using the latest indices from the FHWA Price Trends Report with appropriate modifications for non-reporting States in the relative need formula distribution process.

Under the criteria in Executive Order 12866, this rule is not a significant regulatory action because it will not have an annual effect of more than $100 million on the economy. The total amount currently available for distribution of fiscal year 2004 IRR program funds is approximately $145 million and we are distributing only $25 million under this rule. Congress has authorized these funds and FHWA has already allocated them to BIA. The cost to the government of distributing the IRR program funds, especially under the relative need formula with which the tribal governments and tribal organizations and the BIA are already familiar, is negligible. The distribution of fiscal year 2004 IRR program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule is consistent with the policies and practices that currently guide our distribution of IRR program funds. This rule continues to adopt the relative need formula that we have used since 1993, adjusting the FHWA Price Trends Report indices for states that do not have current data reports. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency. The FHWA has transferred the IRR program funds to us and fully expects the BIA to distribute the funds according to a funding formula approved by the Secretary. This rule does not alter the budgetary effects on any tribes from any previous or any future distribution of IRR program funds and does not alter entitlement, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule does not raise novel legal or policy issues. It is based on the relative need formula in use since 1993. We are changing determination of relative need only by appropriately modifying the FHWA Price Trend Report indices for states that did not report data for the FHWA Price Trends Report, just as we did for the partial distributions for fiscal years 2000, 2001, 2002 and 2003 IRR Program funds. Approximately 350 road and bridge construction projects are at various phases that depend on this fiscal year's IRR program funds. Leaving these ongoing projects unfunded will create undue hardship on tribes and tribal members. Lack of funding would also pose safety threats by leaving partially constructed road and bridge projects to jeopardize the health and safety of the traveling public. Thus, the benefits of this rule far outweigh the costs. This rule is consistent with the policies and practices that currently guide our distribution of IRR Program funds.

A Regulatory Flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is not required for this rule because it applies only to tribal governments, not State and local governments.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act, because it does not have an annual effect on the economy of $100 million or more. We are distributing only $25 million under this rule. Congress has authorized these funds and FHWA has already allocated them to BIA. The cost to the government of distributing the IRR Program funds, especially under the relative need formula with which tribal governments, tribal organizations, and the BIA are already familiar, is negligible. The distribution of the IRR Program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Actions under this rule will distribute Federal funds to projects for transportation planning, road and bridge construction, and road improvements. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign based enterprises. In fact, actions under this rule will provide a beneficial effect on employment through funding for construction jobs.

Under the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ), this rule will not significantly or uniquely affect small governments, or the private sector. A Small Government Agency Plan is not required. This rule will not produce a federal mandate that may result in an expenditure by State, local, or tribal governments of $100 million or greater in any year. The effect of this rule is to immediately provide $25 million of fiscal year 2004 IRR Program funds for ongoing IRR activities and construction projects.

With respect to Executive Order 12630, the rule does not have significant takings implications since it involves no transfer of title to any property. A takings implication assessment is not required.

With respect to Executive Order 13132, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. This rule should not affect the relationship between state governments and the Federal government because this rule concerns administration of a fund dedicated to IRR projects on or near Indian reservations that has no effect on Federal funding of state roads. Therefore, the rule has no Federalism effects within the meaning of Executive Order 13132.

This rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. This rule contains no drafting errors or ambiguity and is clearly written to minimize litigation, provide clear standards, simplify procedures, and reduce burden. This rule does not preempt any statute. Under The Transportation Equity Act for the 21st Century negotiated rulemaking, we have published a proposed rule and funding formula which is currently being finalized. A final funding formula for fiscal year 2004 will be published in 2004. The rule is not retroactive with respect to any funding from any previous fiscal year (or prospective to funding from any future fiscal year), but applies only to $25 million of fiscal year 2004 IRR Program funding.

The Paperwork Reduction Act does not apply because this rule does not impose record keeping or information collection requirements or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 501 et seq. We already have all of the necessary information to implement this rule.

This rule is categorically excluded from the preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. , because its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and the road projects funded as a result of this rule will be subject later to the National Environmental Policy Act process, either collectively or case-by-case. Further, no extraordinary circumstances exist to require preparation of an environmental assessment or environmental impact statement.

Pursuant to Executive Order 13175 of November 6, 2000, “Consultation and Coordination with Indian Tribal Governments,” we have consulted with tribal representatives throughout the negotiated rulemaking process. We have evaluated any potential effects on federally recognized Indian tribes and have determined that there are no potential adverse effects and have determined that this rule preserves the integrity and consistency of the relative need formula process we have used since 1993 to distribute IRR Program funds. We are making a change from previous years (which we also made for fiscal years 2000, 2001, 2002 and 2003 IRR Program funds (see Federal Register notices at 65 FR 37697, 66 FR 17073, 67 FR 44355 and 68 FR 33625 ) to modify the FHWA Price Trends Report indices for non-reporting states which do not have current price trends data reports. The yearly FHWA Report is used as part of the process to determine the cost-to- improve portion of the relative need formula. Consultation with tribal governments and tribal organizations is ongoing as part of the TEA-21 negotiated rulemaking process.

The Department of the Treasury published a system notice for “Treasury/BPD.009-U.S. Treasury Securities Fraud Information System” in its entirety at 68 FR 34486-34489 (June 9, 2003). We did not receive any comments on the notice. The system of records became effective July 21, 2003.

We issued a proposed rule exempting the system of records from certain provisions of the Privacy Act of 1974, as amended, at 68 FR 36955-36957 (June 20, 2003). Under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt any system of records within the agency from certain provisions of the Privacy Act of 1974, as amended, if the system is investigatory material compiled for law enforcement purposes. The system of records contains investigatory material compiled for law enforcement purposes.

The provisions of the Privacy Act from which exemption is claimed pursuant to 5 U.S.C. 552a(k)(2) are: 5 U.S.C. 552a(c)(3) (Accounting of certain disclosures available to the individual), (d)(1)-(4) (Access to records), (e)(1) (Maintenance of information to accomplish purposes authorized by statute or executive order only), (e)(4)(G) (Publication of procedures for notification), (e)(4)(H) (Publication of procedures for access and contest), (e)(4)(I) (Publication of sources of records), and (f) (Rules for notification, access and contest) to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) as material compiled for law enforcement purposes.

In an unrelated change, the proposed rule clarified the privacy interests afforded to close survivors of a deceased securities holder. Public Debt protected the privacy interests of securities holders by regulation long before the passage of the Privacy Act of 1974. We proposed to amend part 323 to comport with exemption 6 of the Freedom of Information Act which permits us to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” Although the right to privacy of a deceased securities holder extinguishes upon death, the exemption will protect the deceased person's family-related privacy interests in certain cases.

The proposed rule requested that public comments be sent to the Disclosure Officer, Administrative Resource Center, Bureau of the Public Debt, no later than July 21, 2003. We did not receive comments on the proposed rule. Accordingly, the Department of the Treasury is hereby giving notice that the system of records entitled “Treasury/BPD.009-U.S. Treasury Securities Fraud Information System.”, is exempt from certain provisions of the Privacy Act.

As required by Executive Order 12866, it has been determined that this final rule is not a “significant regulatory action,” and therefore, does not require a Regulatory Impact Analysis.

The regulation will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Department of the Treasury and Public Debt certify that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities.

In accordance with the provisions of the Paperwork Reduction Act of 1995, the Department of the Treasury and Public Debt have determined that this final rule would not impose new record keeping, application, reporting, or other types of information collection requirements.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM would be unnecessary and contrary to public safety interests. These regulations are needed to minimize danger to the public resulting from numerous spectator and participant craft in close proximity to each other around the staging area and parade route. The event will be held on Saturday December 6, 2003. There is not sufficient time to allow for a notice and comment period, prior to the event. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. In addition, advance notifications will be made via marine information broadcasts.

For the same reasons, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The 2003 Holiday Boat Parade of the Palm Beaches is a nighttime parade of approximately 60 pleasure boats decorated with holiday lights. These boats range in length from 15 feet to 50 feet. It is anticipated that approximately 200 spectator craft will view the parade. The parade will form in a staging area located within the Lake Worth turning basin on the southeast side of Peanut Island and encompassing all waters within the turning basin west of a line connecting Marker 12 on the north side of the turning basin and Marker 13 on the south side of the turning basin. The parade will then commence and proceed north from Lake Worth South Section Marker 1 on the Intracoastal Waterway (ICW) to Jonathan's Landing Marina at Lake Worth Creek Marker 19, where the parade will disperse. The regulated area includes the staging area and the parade route.

The special local regulations for this event prohibit non-participant vessels from entering the regulated area, which includes the staging area and the parade route.

The staging area encompasses all waters within the Lake Worth turning basin on the southeast side of Peanut Island west of a line connecting Lake Worth Inlet Marker 12 on the north side of the turning basin and Marker 13 on the south side of the turning basin. No anchoring is permitted in the staging area.

The parade route encompasses the Intracoastal Waterway from Lake Worth South Section Marker 1 to Lake Worth Creek Marker 19. During transit of the parade, these regulations prohibit non-participating vessels from approaching within 500 feet ahead of the lead parade vessel, 500 feet astern of the last participating vessel, or within 50 feet on either side of the outboard parade vessels in the regulated area, unless authorized by the Coast Guard patrol commander.

This proposal is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). This regulation will have a minimal impact on non-participant and non-spectator vessels due to the normally low volume of vessel traffic on the ICW during this time this rule is effective. Moreover, this rule is effective for only 3 hours, it regulates only the waters immediately surrounding the parade vessels, and moves with the parade vessels and should therefore have a minimal impact on non-participant and non-spectator vessels.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the regulated area from 6 p.m. to 9 p.m. on December 6, 2003. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule is for a highly publicized event and will be in effect for only three hours late in the day when vessel traffic is minimal. Any traffic that needs to pass through the regulated area will be allowed to pass with the permission of the Coast Guard patrol commander once the parade participants have moved further along the parade route.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph 34(h), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) the Coast Guard finds that good cause exists for not publishing an NPRM. Also, for the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The threat of maritime attacks is real as evidenced by the October 2002 attack of a tank vessel off the coast of Yemen and the continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September, 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002).

As a result, a heightened level of security has been established around the Coronado Bridge. Maintaining the structural integrity of the Coronado Bridge, which spans San Diego Bay, is very important to the local economy and military units within the San Diego Area. The measures contemplated by this rule are intended to prevent future terrorist attacks against individuals on or near the Coronado Bridge. Any delay in the effective date of this TFR is impractical and contrary to the public interest.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and the war with Iraq have made it prudent to U.S. ports to be on higher state of alert because the Al-Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures.

In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against the Coronado Bridge would have on the public interest, the Coast Guard is establishing security zones around the Coronado Bridge. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against these bridges. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on this bridge would have on the public, the transportation system and surrounding areas and communities, security zones are prudent for these structures.

In this temporary rule, the Coast Guard is establishing fixed security zones encompassing, from the surface to the sea floor, navigable waters 25 yards around all piers, abutments, fenders and pilings of the Coronado Bridge, San Diego Bay, California. Entry into these security zones is prohibited unless doing so is necessary for safe navigation or to conduct official business such as scheduled maintenance or retrofit operations. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein is punishable by civil penalties, criminal penalties (including imprisonment up to 6 years), and in rem liability against the offending vessel. Any person who violates this section using a dangerous weapon or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years.

Coast Guard personnel will enforce this regulation and the Captain of the Port may be assisted by other Federal, State, or local agencies in the patrol and enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 33 U.S.C. 1231.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Although this regulation restricts access to portions of the navigable waterways around the bridge, the effect of this regulation will not be significant because: (i) The zones will encompass only a small portion of the waterway; (ii) Vessels will be able to pass safely around the zones; and (iii) Vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative.

The sizes of the zones are the minimum necessary to provide adequate protection for the bridges, vessels operating in the vicinity, adjoining areas and the public. The entities most likely to be affected are commercial vessels transiting the main ship channel en route the southern San Diego Bay and Chula Vista ports and pleasure craft engaged in recreational activities and sightseeing.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of commercial vessels transiting the main ship channel en route the southern San Diego Bay and Chula Vista ports and pleasure craft engaged in recreational activities and sightseeing. The security zones will not have a significant economic impact on a substantial number of small entities for several reasons: small vessel traffic can pass safely around the security zones and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities. Small entities and the maritime public will be advised of these security zones via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Rick Sorrell, USCG, c/o U.S. Coast Guard Captain of the Port, telephone (619) 683-6495 for assistance in understanding this rule.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of complianc e on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

On October 29, 2001 ( 66 FR 54598), EPA approved Delaware's 1-hour ozone attainment demonstration plan for the Philadelphia area. As part of that final rule, EPA required that Delaware revise the plan to recalculate the 2005 attainment year motor vehicle emission budgets (MVEBs) for the Delaware portion of the Philadelphia area (Kent and New Castle Counties). The 2005 MVEBs were to be updated using MOBILE6, the most recent version of MOBILE, EPA's mobile emission factor model. On September 2, 2003, Delaware formally submitted a revision to its attainment demonstration plan for the Philadelphia area, consisting of updated MOBILE6-based MVEBs for the Delaware portion of the Philadelphia area.

MOBILE is an EPA emission factor model for estimating pollution from on-road motor vehicles. The MOBILE model calculates emissions of volatile organic compounds (VOCs), nitrogen oxides (NO X ) and carbon monoxide (CO) from passenger cars, motorcycles, buses, and light-duty and heavy-duty trucks. The model accounts for the emission impacts of factors such as changes in vehicle emission standards, changes in vehicle populations and activity, and variation in local conditions such as temperature, humidity, fuel quality, and air quality programs. The MOBILE model, first developed in 1978, has been updated several times to reflect changes to motor vehicles and fuel composition, to incorporate better understanding of vehicle emissions, and to reflect new emissions programs. The MOBILE model is used to calculate current and future inventories of motor vehicle emissions at the national and local level. These inventories are used to make decisions about air pollution policy and programs at the local, state and national level. Mobile source emission inventories based on MOBILE are used to meet the Federal Clean Air Act's requirements for SIPs and transportation conformity. EPA announced the release of the MOBILE6 version of the MOBILE model on January 29, 2002 (67 FR 4254) as a replacement for a MOBILE5 version of the model. In November of 1999, EPA issued two memoranda  1 to articulate its policy regarding states that incorporated MOBILE5-based interim Tier 2 standard  2 benefits into their attainment demonstration plans and those plans' associated MVEBs. EPA has implemented this policy in all ozone nonattainment areas where a state assumed Federal Tier 2 benefits in its attainment demonstration plans according to EPA's April 2000 MOBILE5 guidance, “MOBILE5 Information Sheet #8: Tier 2 Benefits Using MOBILE5.” States whose approved attainment demonstrations or maintenance plans include interim MOBILE5-based estimates of the Tier 2 standards were required to update and resubmit the MVEBs of those plans after the final release of MOBILE6. EPA's October 29, 2001 (66 FR 54598) approval of Delaware's 1-hour ozone attainment demonstration plan for the Philadelphia area was based upon interim mobile emission budgets, with projected reductions from Tier 2 motor vehicle standards estimated using the MOBILE5 model. EPA's October 29, 2001 approval of Delaware's 1-hour ozone attainment demonstration for the Philadelphia area required a MOBILE6-based motor vehicle emission budget SIP revision.

On September 2, 2003, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted an SIP revision to its approved attainment plan for the Philadelphia area. The revision consists of updated inventories of emissions calculated using the MOBILE6 emission factor model of the ozone precursors VOC and NO X from highway mobile sources operating in the Delaware portion (Kent and New Castle Counties) of the Philadelphia area. These inventories were generated for summertime periods in 1990, and for 2005, the year the Philadelphia area is to attain the 1-hour ozone standard. The MOBILE6-based highway emission inventory projections for VOCs and NO X for 2005 also serve as the attainment plan's MVEBs for transportation conformity planning.

The SIP revision is intended to demonstrate that the updated MOBILE6-based projections of motor vehicle emissions continue to support the demonstration of attainment of the 1-hour ozone NAAQS for the Philadelphia area by 2005. Table 1 is presented to compare Delaware's revised MOBILE6-based motor vehicle emissions inventories with the previously approved MOBILE5-based inventories, by pollutant, expressed in units of tons per summer day (tpd). The MOBILE6-based inventories were developed using the latest available planning assumptions, including 2002 data from Delaware's Department of Transportation for vehicle registration, vehicle miles traveled (VMT) and speeds.

EPA's articulated its policy regarding the use of MOBILE6 modeling for purposes of SIP development in guidance documents entitled “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity”  3 and “Clarification of Policy Guidance for MOBILE6 in Mid-course Review Areas.”  4

Delaware's September 2, 2003 SIP revision submittal includes an explanation of the differences between the MOBILE5 and MOBILE6-based inventories. The submittal also provides a comparison of the relative reduction, by percentage, between the 1990 and 2005 inventories generated using the two different versions of the model to ensure that the approved Philadelphia area 1-hour ozone attainment demonstration will continue to demonstrate attainment by 2005. The methodology for this relative reduction comparison consists of comparing the revised MOBILE6 baseline and attainment case inventories, by pollutant, with the previously approved MOBILE5 inventory totals for the Delaware portion of Philadelphia area to determine if attainment can still be predicted by the attainment date. Delaware then compared these relative reduction percentages for the MOBILE5 versus MOBILE6 inventories for 1990 and 2005. As indicated in Table 1, the State's relative reduction comparison for the two-county Delaware portion of the Philadelphia area shows that the reductions in NO X and VOC emissions, on a percentage basis, are greater in the revised MOBILE 6-based inventories than in the previously approved MOBILE5-based inventories. It should be noted that because the latest available planning assumptions ( e.g. , 2002 data for vehicle registration, vehicle miles traveled (VMT) and speeds) were also used in the revised MOBILE6-based modeling, this relative reduction comparison is not a strict comparison of the differences resulting solely from the use of the MOBILE6 versus MOBILE5 version of the MOBILE model.

EPA's relevant policy guidance also requires Delaware to consider whether growth and control strategy assumptions for other sources ( i.e, point, area, and non-road mobile sources) were still accurate at the time of the revised MOBILE6-based MVEBs were developed for submittal as a SIP revision to the Philadelphia area attainment plan. Delaware's September 2, 2003 SIP submittal indicates that the overall emissions of VOC and/or NO X in the 1996 and 1999 periodic emissions inventories are below the rate-of-progress emission targets for those two milestone years, and concludes that the assumptions for growth and control strategies continue to be valid for the Delaware portion of the Philadelphia area. EPA finds that Delaware's September 2, 2003 SIP revision satisfies the conditions outlined in EPA's MOBILE6 policy guidance, and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the 1-hour ozone standard by the attainment date of 2005 for the Delaware portion of the Philadelphia area.

As previously stated, the on-road components of VOC and NO X emissions of the 2005 attainment plan emission inventories are the 2005 MVEBs for the Philadelphia area. Those MVEBs for the Delaware portion of the Philadelphia area are summarized in Table 2. As indicated in Delaware's September 2, 2003 submittal, these budgets were developed using the latest planning assumptions, including 2002 vehicle registration, speed and vehicle miles traveled (VMT) data. Because Delaware's September 2, 2003 submittal satisfies the conditions outlined in EPA's MOBILE6 policy guidance and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the 1-hour ozone standard, EPA is approving these MVEBs.

Docket. The EPA has established an official public docket for this action including both Docket ID No. OAR-2002-0045 and Docket ID No. A-94-67. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. All items may not be listed under both docket numbers, so interested parties should inspect both docket numbers to ensure that they have received all materials relevant to the final rule. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is available for public viewing at the Air Docket in the EPA Docket Center, EPA West, Room B-102, 1301 Constitution Avenue, NW., Washington, DC 20460. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr/ . You may also access a copy of the final rule incorporating the provisions of this Federal Register notice through the Technology Transfer Network (TTN) at http://www.epa.gov/ttn/atw/pulp/pulppg.html.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov.edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above. Once in the system, select search, then key in the appropriate docket identification number.

Background: On February 18, 2003, we published a direct final rule (68 FR 7706) and parallel proposal (68 FR 7735) amending the NESHAP for chemical recovery combustion sources at kraft, soda, sulfite, and stand-alone semichemical pulp mills (40 CFR part 63, subpart MM). The amendments clarified and consolidated the monitoring and testing requirements and added a site-specific alternative standard for one pulp mill. The consolidation of the monitoring and testing requirements resulted in significant text shifts within and between the monitoring and testing sections of the final rule.

On July 18, 2003 (68 FR 42603), we published amendments to the final rule that deleted portions of subpart MM added by the direct final rule (68 FR 7706), the provisions of which were the subject of adverse comment. The amendments also made two technical corrections to inadvertent errors in rule language. The EPA indicated in that notice that if we took further action, we would do so by acting on the pending proposed rule (68 FR 7735) and would not submit that proposal to another round of public comment.

However, the amendments inadvertently failed to restore some of the underlying rule language from the original rule. We are restoring those provisions here. The technical corrections in this action restore the following provisions inadvertently deleted by the July 18, 2003, amendments:

• Reference in § 63.864(d) to the procedures in §§ 63.6(h) and 63.8 for installing, calibrating, maintaining, and operating a continuous opacity monitoring system;

• Requirement in § 63.864(e)(10) to determine and record the pressure drop across the scrubber and the scrubbing liquid flow rate at least once every successive 15-minute period;

• Requirement in § 63.864(e)(11) to determine and record the operating temperature of the regenerative thermal oxidizer at least once every successive 15-minute period; and,

• “Eq. 1” label for the equation in § 63.865(a)(1).

The technical corrections in this action also restore the particulate matter (PM) emission limit in English units in § 63.862(b)(1) for new kraft and soda recovery furnaces, which was inadvertently omitted from the January 12, 2001, final rule. This addition to the rule text does not alter the standard. It merely expresses it in English units, to go along with the metric units already in the rule.

The EPA is issuing today's technical corrections in final form because we are acting on the pending proposal on which there has been notice and opportunity for public comment. In addition, we gave actual notice of this action to the commenters to that proposed rule, alerted them to the possibility of this action, and considered their comments.

Section 553(d) of 5 U.S.C. allows an agency, upon a finding of good cause, to make a rule effective immediately. Because today's technical corrections restore regulatory language which was inadvertently deleted by previous amendments, do not add any requirements necessitating additional time for compliance, and otherwise do not substantively change the requirements of the final rule, we find good cause to make the technical corrections effective immediately.

Under Executive Order 12866 (58 FR 51736, October 4, 1993), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. Because EPA has made a “good cause” finding that this action is not subject to notice and comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of the UMRA. This action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA is not proposing/adopting any voluntary consensus standards in this action.

This action does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing these technical corrections, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of these technical corrections in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. These technical corrections do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that, before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the Congressional Review Act if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of December 5, 2003. The EPA will submit a report containing the rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 1866(a)(1)(F) of the Social Security Act (the Act) requires a hospital, as a condition of Medicare participation, to enter into an agreement with a quality improvement organization (QIO), for the peer review of Medicare services provided by the hospital. ( Note: QIOs were formerly known as peer review organizations (PROs). We published a final rule with comment period on May 24, 2002 (67 FR 36539), changing the name to QIOs.) Our regulations at 42 CFR 476.78 provide that health care facilities that submit Medicare claims must cooperate in the conduct of QIO reviews, including providing the QIO with information necessary to its determinations. This often includes providing the QIO with photocopies of patients' medical records.

We published a final rule on October 20, 1992, in the Federal Register (57 FR 47779), following notice-and-comment rulemaking, which established a formula for calculating the rate of reimbursement for these photocopy costs incurred by hospitals. Using this formula, we set the rate at 7 cents per page. The regulation requires us to determine a fixed payment amount per page by adding per-page labor costs and per-page supply costs. The regulation also provides for Medicare payment for the costs of first class postage for mailing records to QIOs. As discussed in detail in the October 20, 1992, final rule (57 FR 47779), the payment established by § 476.78 represents an additional payment to hospitals under the prospective payment system (PPS) for photocopy costs. Payment for the equipment and overhead costs associated with furnishing the QIO with required documentation is made under other Medicare payment provisions for capital-related costs and inpatient operating costs.

The formula for calculating the per-page reimbursement rate for photocopies is set forth at § 476.78(c), which provides:

Photocopying reimbursement methodology for prospective payment system hospitals. Hospitals subject to the prospective payment system are paid for the photocopying costs that are directly attributable to the hospitals' responsibility to the QIOs to provide photocopies of requested hospital records. The payment is in addition to payment already provided for these costs under other provisions of the Social Security Act and is based on a fixed amount per page as determined by CMS as follows:

(1) Step one. CMS adds the annual salary of a photocopy machine operator and the costs of fringe benefits as determined in accordance with the principles set forth in OMB circular A-76.

(2) Step two. CMS divides the amount determined in paragraph (c)(1) of this section by the number of pages that can be reasonably expected to be made annually by the photocopy machine operator to establish the labor cost per page.

(3) CMS adds to the per-page labor cost determined in paragraph (c)(2) of this section the per-page costs of supplies.

Using this formula we established the per-page rate of 7 cents in the October 20, 1992, final rule. The validity of this rule and its reimbursement methodology were challenged in a certified class action by Medicare—participating hospitals, in the U.S. Court of Appeals for the Ninth Circuit. Queen of Angels/Hollywood Presbyterian Medical Center v. Shalala, 65 F.3d 1472, 1476 (9th Cir. 1995). The Court of Appeals upheld the validity of our photocopy reimbursement methodology and sustained the lawfulness of the 7 cents per page rate established in the rule.

Due to increases in labor and supply costs, we are increasing the reimbursement rate from 7 cents per page to 12 cents per page in accordance with the established court-approved methodology set forth in § 476.78(c).

Under the current regulation, we apply a uniform per-page rate on a nationwide basis to all PPS hospitals that have QIO agreements. We base the calculation on labor and supply costs. The calculation in the current rule, as discussed in the preamble to the October 20, 1992, rule, is based on the following:

• An operator will copy approximately 364,320 pages annually.

• The salary level of an operator is equivalent to a GS-5 experienced midlevel secretary ($17,686) plus 27.9 percent fringe benefits ($4,934) for a total salary of $22,620.

• Paper costs are 0.5 cents per page ($25 per case of paper with 5,000 sheets in a case).

• Toner and developer costs are 0.5 cents per page.

On November 22, 2002, we published a proposed rule (67 FR 70358) in which we proposed to increase the rate of QIO-related photocopy reimbursement from 7 cents to 12 cents per page. We calculated this rate by updating the salary, fringe benefits, and supply figures used in the October 20, 1992, final rule. In accordance with the methodology at § 476.78(c), we considered the following factors in calculating the proposed rate: (1) The labor costs associated with photocopying and (2) the costs of supplies.

Labor costs were calculated consistent with the methodology at § 476.78(c), first, by adding the annual salary of a photocopy machine operator with the costs of fringe benefits, and second, by dividing that sum by the number of pages that can reasonably be expected to be made in a year.

In the October 20, 1992, rule, we adopted the salary level for an experienced (GS-5) midlevel secretary in the Federal government as representative of that of a photocopy machine operator. Use of this figure approximated or exceeded the actual salary information for individuals performing these tasks that had been submitted by various commenters. Furthermore, we determined that use of this salary level yielded payments that were more than adequate to ensure a sufficient skill level. The annual salary of $17,686 used in the October 20, 1992, rule was derived from the U.S. Office of Personnel Management's 1992 General Schedule.

In this final rule, we will continue to deem the salary of a Federal GS-5 midlevel secretary as representative of a photocopy operator's salary; however, we will update the figure to take into account increases in the payment rate of a midlevel secretary. Thus, as discussed in the proposed rule, we are using the GS-5 annual salary of $28,727 derived from the U.S. Office of Personnel Management's 2002 General Schedule to calculate the revised rate.

In the October 20, 1992, final rule, we ascribed the fringe benefits of an employee to be 27.9 percent of the employee's salary, which was the standard percentage dictated by the cost principles set forth in the Office of Management and Budget (OMB) Circular A-76. While there may be other yardsticks to measure this component of costs, we find this to be a reasonable resource since the thrust of this OMB circular is to help the government compare potentially incurred costs to determine whether the costs can be more economically incurred internally or through contract with a commercial source. Therefore, we continue to use OMB Circular A-76 to calculate the annual fringe benefit cost. Accordingly, fringe benefits were calculated in the November 22, 2002, proposed rule based on 29.7 percent of the GS-5 salary as outlined in the OMB Circular A-76 Transmittal Memorandum 19—FY 2000 estimate. Thus, the annual fringe benefit cost is $8,532 ($28,727 * 29.7 percent).

In this final rule, we are using 364,320 pages per year in the calculation of the annual labor cost. In the October 20, 1992, rule, we determined that 364,320 was the number of pages that could reasonably be expected to be copied in a year. Earlier, in the proposed rule “Changes to Peer Review Organizations Regulations”, published on March 16, 1988, at 53 FR 8654, we had proposed the use of 748,000 pages per year in the calculation of the annual labor cost. This initial figure was determined based on copying documents at a rate of six pages per minute for each hour in an 8 hour day, 5 days a week, 52 weeks per year. The estimate was based on hand feeding of documents into the photocopying machine for duplication, although we recognized that there are many photocopying tasks that may be accomplished through automatic feeds. Automatic feeds greatly increase the number of pages that can be generated by a machine on an hourly basis, and as a result, greatly decrease the cost of photocopying per page.

In response to comments received on the March 16, 1988, proposed rule (53 FR 8654), we revised the 748,000 figure in the October 20, 1992, final rule to account for time spent by the photocopy machine operator in search and retrieval tasks, and time away from work on annual vacation, sick, and holiday leave. This resulted in a reduction from 748,000 to 364,320 in our estimate of the number of pages that may be reasonably expected to be made annually, and a corresponding increase in the per-page labor rate.

We are unaware of any significant changes in technology since the October 20, 1992, final rule (57 FR 47779) that would lead to either a significant decrease or increase in the annual number of pages that may be copied. Nor are we aware of any changes that would significantly increase or decrease the time allocated to search and retrieval tasks. Therefore, we continue to use the 364,320 figure to calculate the per-page labor cost.

To determine the per-page labor cost, the total of salary ($28,727) and fringe benefits ($8,532) costs, which amount to $37,259, was divided by 364,320 pages, the number of copies made in a year, resulting in an annual labor cost per page of 10 cents ($37,259/364,320 pages).

In the proposed rule, we proposed a total supply cost of 2.3 cents per page. This is based on a per-page paper cost of 0.5 cents and a developer and toner cartridge cost of 1.8 cents per page. The paper costs were calculated based on $23 per case of paper with 5,000 sheets in a case. This equates to 0.5 cents per page ($23/5,000).

In this rule, we used an objective methodology to calculate the per-page cost for toner and developer that can also be used in future updates. We calculated these costs using estimates of the costs for toner cartridges and developer drums contained in the General Services Administration (GSA) supply catalogue, and on the basis of a photocopy machine producing 364,320 pages annually.

Consistent with § 476.78(c)(3), the payment rate per page is the total of the per-page labor cost and the per-page supply cost, which is equivalent to 12 cents. The established calculation methodology actually results in a cost of 12.3 cents per page, however, consistent with our policy and generally accepted mathematics principles, we chose to round down to 12 cents. We believe this decision is both reasonable and supportable, based on the fact that the higher amount substantially exceeds all published OMB inflation indexes, including the Consumer Price Index (CPI)-Wage index (photocopying expense is largely comprised of labor costs).

In addition to updating the rate of reimbursement for photocopies, we are also amending the existing regulation to permit the rate to be adjusted without undergoing notice-and-comment rulemaking each time it needs to be adjusted to reflect inflationary or technology changes.

We intend to review and adjust the rate periodically in accordance with the same factors considered in establishing the rate in the October 20, 1992, final rule and the updated rate in this final rule. This review will include an examination of the labor and supply components of the formula, and we will update the rate as necessary to account for significant inflationary changes to these components.

Absent some compelling reason, in future updates, we will continue to deem the salary and fringe benefits of a Federal government GS-5 midlevel secretary as representative of the salary and fringe benefits of a photocopy machine operator and use those values to calculate the reimbursement rate. Also, absent some compelling reason or major technological change that would lead to a significant increase or decrease in the number of pages that can be made annually, we will not change the number of pages used in calculating the rate.

We will provide for the payment of the expenses of furnishing photocopies to QIOs, to other providers subject to a PPS (for example, skilled nursing facilities (SNFs) and home health agencies (HHAs)), in accordance with the rules established at § 476.78 for reimbursing PPS hospitals for these expenses.

Current regulations do not address reimbursement for providers other than hospitals for costs of photocopying medical records in cooperation with QIO review activities because in the past QIO review of providers other than hospitals was relatively insignificant. To the extent that this review activity took place, it was minimal, and the related costs were included on the provider's cost report. SNFs, HHAs, and other providers have recently converted from the cost-based reimbursement system to a PPS. Because QIO review of these providers has been minimal or nonexistent, costs related to this activity are not adequately reflected in the base PPS rate. Therefore, we believe it is appropriate to provide for a means of paying for these costs when they occur. To accomplish this change, we will replace the more narrow term “hospitals” with “providers,” in § 476.78(b)(2) and (c), to include other providers subject to a PPS.

Additionally, we will revise the payment provisions for SNFs and HHAs by adding a paragraph at § 413.355 and § 484.265, that authorizes reimbursement for the costs of photocopying and mailing medical records required for QIO review, to SNFs and HHAs.

We will amend § 476.78(d) to provide that, as with other disputes regarding Medicare payment to providers, disputes concerning payments for costs related to QIO review under § 476.78 and the other payment provisions of the Medicare statute and regulations must be presented in accordance with the administrative and judicial review requirements of section 1878 of the Act and subpart R of 42 CFR part 405.

We received three timely items of correspondence in response to the proposed rule published on November 22, 2002. A summary of the major issues raised in those comments and our responses follow:

Comment: One QIO commented that the November 22, 2002, proposed rule would increase pass-through photocopy costs well beyond the amount budgeted in their seventh round Medicare contract. This increase could cause the QIO to exceed the total cost of its contract.

Response: Increased photocopying costs are included in the seventh round scope of work funding level. However, these costs are a true pass-through; that is, CMS is responsible for paying providers, and CMS uses its QIO contractors as the vehicle to pay them. Although CMS does not anticipate increasing the total cost of each QIO contract immediately upon publication of this rule, any time a QIO believes it will exceed the total cost of its contract, the QIO should immediately notify CMS (see “Limitation of Cost” clause in the seventh round contract). If the excess costs are the result of increased photocopying reimbursement, CMS will exercise one of the four options CMS always uses in similar cases—we will either request that money be added to the contract, reduce work, ask the QIO to move funds between cost centers or line items, or some combination of these options. In no case will CMS expect the QIO to absorb any excess pass-through with existing contract funds without a corresponding reduction or shifting in level of effort.

Comment: One hospital commented that the method for calculating labor costs described in section II.A of the preamble of the November 22, 2002, proposed rule only provides for the cost of a photocopy machine operator, while in actual practice a significant portion of records reproduction time should be attributed to record retrieval, review, and re-filing by a records technician. The hospital further stated its pay scale for a records technician ranges from $8.30 to $11.22 per hour.

Response: We agree with this comment. However, in section II.D of the preamble of the November 22, 2002, proposed rule, we explained how we calculated the estimated number of pages copied annually. As discussed in detail at 57 FR 47780, this estimate was adjusted before publication of the current regulation to take into account the appropriate amount of labor time required to perform all of the steps that are performed in addition to the actual photocopying, such as logging in the request, retrieving the record, refiling the record, and mailing copies. Thus, the term “photocopy machine operator” can reasonably be interpreted to include records technicians or anyone else directly involved in the hands-on process. Further, section II.B of the preamble of the November 22, 2002, proposed rule explains that we used an updated representative annual salary of $28,727, or an hourly rate of $13.81, which exceeds this provider's salary range for a records technician. Therefore, we have not increased the per-page reimbursement rate based on this comment.

Comment: Another commenter questioned the raw data we applied to the approved methodology for calculating the per-page cost of photocopying medical records. Although this commenter strongly supported the three primary objectives of the rule (to increase reimbursement, extend provisions of the rule to all PPS providers, and allow for periodic adjustment of rates without notice and comment rulemaking), the commenter contended the rate should be significantly higher than the proposed 12 cents per page.

In particular, this organization stated the proposed labor rate is insufficient to retain qualified personnel in the private sector, fringe benefit rates are too low, the number of pages copied annually is too high due to recent Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements, and the cost of supplies is too low as a result of comparing GSA bulk purchase costs to actual costs available to private sector companies. The commenter believes we used the October 20, 1992, regulation as a starting point for current calculations and that regulation was based on artificially low cost assumptions.

The commenter supports extending the proposed reimbursement methodology to non-hospital PPS providers and also supported the periodic review provisions. However, the commenter asked us to amend the rate review section to require such a review at no more than 5-year intervals.

Response: In this rule, we used recent cost data to calculate the proposed per-page photocopy costs and did not simply build on 1992 data. However, we believe that the data used in both this rule and the 1992 rule is reasonable and accurately reflects the costs associated with this responsibility. Further, we believe the proposed representative salary and fringe benefit rates of $28,727 and 29.7 percent, respectively, are reasonable and sufficient to attract and retain qualified personnel. The fringe benefit (F/B) rate, in particular, is very close to the mean F/B rate of the numerous contractors we reviewed before publication of the November 22, 2002, proposed rule, to validate the A-76 Transmittal Memorandum. Although the 29.7 percent F/B rate is based on the 2000 OMB guidance, we have applied it to a higher base figure and see no reason to adjust it further. The $28,727 salary estimate represents a mid-level GS-5 secretary salary in 2002, which we believe is a fair and accurate comparison to the skill level necessary to process medical record photocopying requests.

The estimated number of pages has remained constant since the October 20, 1992, regulation was published. Although the commenter may be correct that HIPAA privacy requirements will modestly reduce the maximum number of pages an operator or technician can copy per year, it is still too soon to calculate the exact effect of that legislation. Further, we believe that increases in the speed and simplicity of reproduction hardware over the last 10 years may offset any decreases in volume resulting from HIPAA.

The comment that the cost of supplies to non-governmental organizations exceeds the GSA catalogue price may be valid. However, the GSA price provides a solid benchmark that does not vary widely by vendor or product quality. Further, our proposed overall reimbursement rate per page amounts to a 7 percent annual increase over the 10 years since publication of the previous rule. This is approximately twice the inflation index rate and adequately compensates for any modest differences between the government and private-sector costs of supplies.

We believe the suggestion to include a maximum 5-year interval between review periods has some merit but may be unnecessary. By eliminating the need for notice and comment rulemaking, it becomes unlikely that any future rate adjustment will take longer than 5 years and potentially could be more frequent.

This final rule incorporates the provisions of the proposed rule with only one minor change. We have deleted the proposed revision of § 476.78(b)(4), thus leaving that section unchanged from the existing text. The proposed amendment, replacing “hospital” with “provider,” had an unintended consequence of appearing to extend the requirement to provide QIOs with discharge notices from hospitals to other inpatient providers. That is neither the purpose nor the intent of this final rule.

Under the Paperwork Reduction Act (PRA) of 1995, agencies are required to provide 60-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. In order to fairly evaluate whether an information collection should be approved, section 3506(c)(2)(A) of the PRA of 1995 requires that we solicit comment on the following issues:

• Whether the information collection is necessary and useful to carry out the proper functions of the agency;

• The accuracy of the agency's estimate of the information collection burden;

• The quality, utility, and clarity of the information to be collected; and

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

Section 476.78 of this regulation contains information collection requirements. In summary, § 476.78 requires providers to submit information to the QIO during the conduct of a QIO review. Because this information is collected during the conduct of an audit, investigation, and/or an administrative action, we believe these collection requirements are not subject to the PRA as stipulated under 5 CFR 1320.4.

We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for rules that constitute significant regulatory action, including rules that have an economic effect of $100 million or more annually. This final rule is not a major rule in terms of the aggregate costs involved.

The 53 separate QIO contracts are awarded on a staggered 3-year basis. Current sixth scope of work contracts provide photocopy reimbursement costs of 7 cents per page. The total dollars budgeted were $8.6 million per year and the 3-year costs were $25.9 million. We estimate by the time this final regulation is published, 19 QIOs will have completed their sixth round contracts, and the other 34 will have less than 153 months (combined) out of a total of 636 months (for all 53 QIOs) remaining in the final year of their sixth round contracts. This translates to 24 percent of the final sixth round year. As such, we project this regulation will increase the costs in the last (that is, current) year of the sixth scope of work by $1.5 million above the previous budgeted level of $8.6 million, to a total of $10.1 million. However, in future years—based on the full 12 months and all 53 QIOs under contract—the increase will be nearly $6.2 million annually.

Thus, we have determined that this final rule is not a major rule with economically significant effects because it will not result in increases in total expenditures of $100 million or more per year.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million or less annually (see 65 FR 69432). Individuals and States are not included in the definition of a small entity.

We generally prepare a regulatory flexibility analysis that is consistent with the RFA unless we certify that a rule will not have a significant impact on a substantial number of small entities. We have not prepared an analysis for the RFA because we have determined, and certify, that this final rule will have no significant economic impact on small entities. The regulation will not impose any economic or operational regulatory burdens on small entities. The regulation will only assist providers in performing the tasks required under the QIO program sixth scope of work, by increasing the reimbursement for providing copies of documents to the QIOs.

Section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We have not prepared an analysis for section 1102(b) of the Act because we have determined that this final regulation will not have a significant impact on the operations of small rural hospitals for the reasons stated above in our discussion of the RFA.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million or more. We have determined that this final rule will not result in such an expenditure. Rather, the final rule will benefit providers by increasing the photocopy reimbursement rate.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct compliance costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this final rule under the threshold criteria of Executive Order 13132 and have determined that it will not have a substantial direct effect on the rights, roles, and responsibilities of States or local governments.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

Under section 1861(s)(7) of the Social Security Act (the Act), Medicare Part B (Supplementary Medical Insurance) covers and pays for ambulance services, to the extent prescribed in regulations, when the use of other methods of transportation would be contraindicated. The House Ways and Means Committee and Senate Finance Committee Reports that accompanied the 1965 legislation creating the Social Security Act suggest that the Congress intended that (1) the ambulance benefit cover transportation services only if other means of transportation are contraindicated by the beneficiary's medical condition, and (2) only ambulance service to local facilities be covered unless necessary services are not available locally, in which case, transportation to the nearest facility furnishing those services is covered (H.R. Rep. No. 213, 89th Cong., 1st Sess. 37 and S. Rep. No. 404, 89th Cong., 1st Sess., Pt I, 43 (1965)). The reports indicate that transportation may also be provided from one hospital to another, to the beneficiary's home, or to an extended care facility.

Our regulations relating to ambulance services are located at 42 CFR part 410, subpart B and 42 CFR part 414, subpart H. Section 410.10(i) lists ambulance services as one of the covered medical and other health services under Medicare Part B. Ambulance services are subject to basic conditions and limitations set forth at § 410.12 and to specific conditions and limitations included at § 410.40. Part 414, subpart H describes how payment is made for ambulance services covered by Medicare.

The Medicare program pays for ambulance services for Medicare beneficiaries when other means of transportation are contraindicated. Ambulance services are divided into different levels of services based on the medically necessary treatment provided during transport as well as into ground (including water) and air ambulance services. These services include the levels of service listed below.

• Basic Life Support (BLS)

• Advanced Life Support, Level 1 (ALS1)

• Advanced Life Support, Level 2 (ALS2)

• Specialty Care Transport (SCT)

• Paramedic ALS Intercept (PI)

• Fixed Wing Air Ambulance (FW)

• Rotary Wing Air Ambulance (RW)

Historically, payment levels for ambulance services depended, in part, upon the entity that furnished the services. Prior to implementation of the ambulance fee schedule on April 1, 2002, providers (hospitals, including critical access hospitals, skilled nursing facilities, and home health agencies) were paid on a retrospective reasonable cost basis. Suppliers, which are entities that are independent of any provider, were paid on a reasonable charge basis.

On February 27, 2002, a final rule was published in the Federal Register (67 FR 9100) that established a fee schedule for the payment of ambulance services under the Medicare program, effective for services furnished on or after April 1, 2002. This rule implemented section 1834(l) of the Act. The fee schedule described in the final rule replaced the retrospective reasonable cost payment system for providers and the reasonable charge system for suppliers of ambulance services. In addition, that final rule implemented that statutory requirement that ambulance suppliers accept Medicare assignment; codified the establishment of new Health Care Common Procedure Coding System (HCPCS) codes to be reported on claims for ambulance services; established increased payment under the fee schedule for ambulance services furnished in rural areas based on the location of the beneficiary at the time the beneficiary is placed on board the ambulance; and revised the certification requirements for coverage of nonemergency ambulance services. The final rule also provided for a 5-year transition period during which program payment for Medicare covered ambulance services would be based upon a blended rate comprised of a fee schedule portion and a reasonable cost (providers) or reasonable charge (suppliers) portion. We are now in the second year of that transition over to full payment based solely on the fee schedule amount.

Section 221 of BIPA provided that, for services furnished during the period July 1, 2001 through, December 31, 2003, a bonus payment, not less than one-half of the bonus paid under the ambulance fee schedule for rural mileage 1 through 17 miles, would be paid for rural mileage 18 through 50. This provision was implemented by § 414.610(c) with the ambulance fee schedule.

The statute provided for this bonus payment only for the interim period specified. We inadvertently omitted from the regulation the time period during which this benefit is payable. Therefore, we are revising § 414.610(c) to reflect that this bonus payment applies only for services furnished during the statutory period. This revision to the regulation is a technical correction to conform the regulation to the statute. Therefore, we believe that notice and comment are unnecessary, and we are waiving proposed rulemaking.

Section 1834(l)(3)(B) of the Act provides the basis for updating payment amounts for ambulance services. Our regulations at § 414.620(f) provide that the ambulance fee schedule must be updated by the AIF annually, based on the percentage increase in the consumer price index (CPI) for all urban consumers (U.S. city average) for the 12-month period ending with June of the previous year (§ 414.610(f)). The regulations also provide that notice of the AIF be published in the Federal Register without opportunity for prior notice and comment. We will follow applicable rulemaking procedures in publishing revisions to the fee schedule for ambulance services that result from any factors other than the inflation factor. In this preamble, we set forth the ambulance inflation factor applicable for services furnished in CY 2004.

Section 414.610(c)(5) is amended to clarify that this benefit is no longer payable for services furnished after December 31, 2003.

Section 1834(l)(3)(B) of the Act, specified in § 414.620(f), provides for an update in payments for CY 2004 that is equal to the percentage increase in the CPI for all urban consumers (CPI-U), for the 12-month period ending with June of the previous year (that is, June 2003). For CY 2004, that percentage is 2.1 percent.

During the transition period (described in § 414.615, Transition to the ambulance fee schedule), the AIF is applied to both the fee schedule portion of the blended payment amount and to the reasonable charge/cost portion of the blended payment amount separately for each ambulance provider/supplier. Then, these two amounts are added together to determine the total payment amount for each provider/supplier.

We are also making the following technical corrections to § 414.605, Definitions.

• In the definition of “ Advanced life support (ALS) intervention, ” we are clarifying that an ALS intervention must be furnished by ALS personnel.

• A comma was inadvertently omitted in the definition of “ Advanced life support, Level 2 (ALS2). ” That comma is now inserted after the phrase “or by continuous infusion” and before the phrase “excluding crystalloid. * * *”

• There was an inadvertent misuse of the term “supplier” in the definition of the term “ emergency response. ” The correct term is “entity.” Providers, as well as suppliers, may furnish an emergency response. We did not intend to exclude providers from receiving payment for this service.

• In the definition of “ Rural area ”, we are clarifying that only New England County Metropolitan Areas (NECMAs) (and not MSAs) apply in New England. (NECMAs exist only in New England. All other areas have MSAs.) Also, the term “NECMA” was inadvertently omitted from the discussion of the Goldsmith modification. The phrase “or NECMA” is now inserted after the term “MSA” and before the phrase “that is identified as rural by the Goldsmith modification.” This clarifies that a Goldsmith modification can apply to a NECMA as well as an MSA.

• Section 414.610(c)(3) is revised to conform the first two sentences to reflect the fact that the process for determining payment for mileage is the same for ground and air miles.

We ordinarily publish a proposed rule in the Federal Register and provide a period for public comment before we publish a final rule. We can waive this procedure, however, if we find good cause that notice and comment procedure is impracticable, unnecessary, or contrary to the public interest and we incorporate a statement of this finding and its reasons in the rule issued. We find it unnecessary to undertake notice and comment rulemaking in this instance because the statute specifies the method of computation of annual updates, and we have no discretion in this matter. Further, this rule does not change substantive policy, but merely applies the statutorily-specified update method. Therefore, under 5 U.S.C. 553(b)(B), for good cause, we waive notice and comment procedures.

We also find it unnecessary to undertake notice and comment rulemaking as to the technical changes because they merely provide technical corrections to the regulations and do not make any substantive changes to the regulations. Therefore, for good cause, we waive notice and comment procedures.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.

We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This final rule is not considered a major rule because it has an effect on the Medicare program of less than $100 million in any 1 year. Application of an AIF of 2.1 percent will result in an additional total program expenditure of approximately $65 million.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. For purposes of the RFA, all ambulance providers/suppliers are considered to be small entities. Individuals and States are not included in the definition of a small entity.

HHS considers that a substantial number of entities are affected if the rule impacts more than 5 percent of the total number of small entities as it does in this rule. Although this rule impacts every ambulance provider and supplier because all ambulance payment rates are increased by the 2.1 percent ambulance inflation factor, we do not believe that this has a significant impact. We estimate the combined impact of this rule would be an approximate 2 percent increase in Medicare revenues, which, therefore, would be a somewhat less than 2 percent increase in total revenues (that is, Medicare plus non-Medicare revenues). This estimated impact does not meet the threshold established by HHS to be considered a significant impact. Nonetheless, we have prepared the analysis below to describe the impact of this rule.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. This rule applies to small rural hospitals that furnish at least one Medicare covered ambulance service to at least one Medicare beneficiary.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This final rule does not result in an expenditure in any 1 year by State, local, or tribal governments of $110 million.

Executive Order 13132 establishes certain requirements that an agency must meet when it publishes a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on State or local governments.

This final rule sunsets the rural mileage bonus for rural mileage 18 through 50 as required by statute, provides an update for inflation as mandated by statute, and changes the term “supplier” to the term “entity” in the definition of an emergency service. Elimination of the bonus payment for rural mileage 18 through 50 will result in a savings to the program of $6 million in CY 2004. Therefore, this is not a major rule.

We estimate that the total program expenditure for CY 2004 for ambulance services covered by the Medicare program is approximately $3 billion. Application of an AIF of 2.1 percent will result in an additional total program expenditure of approximately $65 million.

Our clarification that an ALS intervention must be furnished by ALS personnel will have negligible impact because generally ALS services are required to be furnished by ALS personnel.

The insertion of the comma that had been inadvertently omitted in the definition of “Advanced life support, Level 2 (ALS2)” will have no impact since it conforms the regulation to the existing implementing instructions.

Changing the term “supplier” to the term “entity” in the definition of “emergency services” is not a material change because it simply conforms the regulation to actual practice as the program is currently administered.

Our clarification in the definition of “Rural area” that NECMAs apply in New England and our addition of NECMA to the discussion of the Goldsmith Modification have a negligible impact because of the very few ambulance suppliers affected. Also, the statute requires that this policy be followed in updating rates by using the most recent Goldsmith modifications.

Our clarification for loaded mileage has no impact because it conforms the regulation to actual practice as the program is correctly administered.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services is amending 42 CFR chapter IV as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-24, adopted November 12, 2003, and released November 14, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-243, adopted November 14, 2003, and released November 17, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202 863-2893, facsimile 202 863-2898, or via e-mail qualexint@aol.com.

Federal regulations at 50 CFR part 679 implementing the Fishery Management Plan (FMP) for Groundfish of the GOA govern the groundfish fisheries in the GOA. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations that also pertain to the U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council met in October 2003 to review scientific information concerning groundfish stocks including the 2002 SAFE report and the EA (see ADDRESSES ) and recommended proposed 2004 specifications. The Council recommended and NMFS proposed a total acceptable biological catch (ABC) of 409,690 mt and a TAC of 227,797 mt for the 2004 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1)(ii), NMFS published in the Federal Register proposed harvest specifications for groundfish in the GOA for the 2004 fishing year published elsewhere in this issue. That document contains a detailed discussion of the proposed 2004 TACs, groundfish reserves, apportionments of TAC, ABC amounts, overfishing levels (OFLs), PSC amounts and apportionments, of the GOA groundfish fishery.

This action provides interim harvest specifications and apportionments thereof for the 2004 fishing year that will become available on January 1, 2004, and remain in effect until superseded by the final 2004 harvest specifications. Background information concerning the 2004 groundfish harvest specification process, on which this interim action is based, is provided in the above mentioned proposed specification document.

Regulations at § 679.20(c)(2)(i) require that one-fourth of each proposed TAC and apportionment thereof (not including the reserves and the first seasonal allowance of pollock and Pacific cod) and one-fourth of the halibut PSC amounts become effective at 0001 hours, A.l.t., January 1, on an interim basis and remain in effect until superseded by the final harvest specifications. As stated in the proposed specifications publication published elsewhere in this issue, no harvest of groundfish is authorized before the effective date of this action implementing the interim specifications.

Regulations at § 679.20(a)(6)(i) and (ii) allocate 100 percent of the pollock TAC to vessels catching pollock for processing by the inshore component, 90 percent of the Pacific cod TAC to vessels catching Pacific cod for processing by the inshore component and 10 percent to vessels catching Pacific cod for processing by the offshore component.

The reserves for the GOA are 20 percent of the TAC amounts for pollock, Pacific cod, flatfish species, and the “other species” category (§ 679.20(b)(2)). The GOA groundfish TAC amounts have been utilized fully since 1987, and NMFS expects this trend to continue in 2004. Therefore, NMFS has proposed reapportioning all the reserves to the TAC. The interim TAC amounts contained in Table 1 reflect the reapportionment of reserves to the TAC.

Table 1 provides interim TAC amounts, the first seasonal allowance of pollock in the combined Western and Central Regulatory Areas, the first seasonal allowance of Pacific cod in the Western and Central Regulatory Areas, interim TAC allocations of Pacific cod to the inshore and offshore components, and interim sablefish TAC apportionments to hook-and-line and trawl gear. These interim TAC amounts and apportionments become effective at 0001 hours, A.l.t., January 1, 2004.

Under § 679.21(d), annual Pacific halibut PSC mortality limits are established for trawl and hook-and-line gear and may be established for pot gear. The Council recommended and NMFS proposed to reestablish the 2003 halibut mortality limits for 2004 because no new information was available. Consistent with 2003, the Council recommended and NMFS proposed exemptions for pot gear, jig gear and the sablefish hook-and-line fishery from halibut PSC limits for 2004. The fishery specific interim PSC allowances for halibut are in effect at 0001 hours, A.l.t., January 1, 2004, and remain in effect until superseded by the final 2004 harvest specifications. The interim halibut PSC limits are: (1) 500 mt to trawl gear, (2) 72.5 mt to hook-and-line gear for fisheries other than demersal shelf rockfish, and (3) 2.5 mt to hook-and-line gear for the demersal shelf rockfish fishery in the Southeast Outside District.

Regulations at § 679.21(d)(3)(iii) authorize apportionments of the trawl halibut PSC limit as bycatch allowances to a deep-water species complex, comprised of rex sole, sablefish, rockfish, deep-water flatfish, and arrowtooth flounder; and a shallow-water species complex, comprised of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species.” The interim 2004 apportionment for the shallow-water species complex is 409 mt and for the deep-water species complex is 91 mt.

The AFA regulations implemented groundfish harvesting and processing limitations, also called sideboards, on AFA catcher/processors and catcher vessels in the GOA. These limitations are considered necessary for fishermen and processors who have received an exclusive harvesting and processing privilege under the AFA to protect the interests of fishermen and processors who do not have such privileges. In the GOA, AFA catcher/processors are prohibited from fishing for any species of fish (§ 679.7(k)(1)(ii)) and from processing any groundfish harvested in Statistical Area 630 of the GOA (§ 679.7(k)(1)(iv)). The Council recommended and NMFS proposed that certain AFA catcher vessels in the GOA be exempt from groundfish harvest limitations. Regulations at § 679.64(b)(2)(ii) exempt AFA catcher vessels in the GOA less than 125 ft (38.1 m) length overall (LOA) whose annual Bering Sea and Aleutian Islands management area pollock landings totaled less than 5,100 mt and that made 40 or more GOA groundfish landings from 1995 through 1997.

For non-exempt AFA catcher vessels in the GOA, harvest limitations are based on their traditional harvest levels of TAC in groundfish fisheries covered by the GOA FMP. Regulations at § 679.64(b)(3)(iii) establish the groundfish harvest limits in the GOA based on the retained catch of non-exempt AFA catcher vessels of each sideboard species from 1995 through 1997, divided by the sum of the TACs for that species over the same period. These amounts are listed in Table 2. All harvests of sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or bycatch, will be deducted from the sideboard limits in Table 2.