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 the Animal and Plant Health Inspection Service (APHIS) on a Sunday or holiday, or at any other time outside the employee's regular duty hours, the Government charges a fee for the services in accordance with 7 CFR part 354 (for services provided by an employee of APHIS' Plant Protection and Quarantine [PPQ] program) and 9 CFR part 97 (for services provided by an employee of APHIS' Veterinary Services [VS] program). Under circumstances described in 7 CFR 354.1(a)(2) and 9 CFR 97.1(a), this fee may include the cost of commuted traveltime. The regulations in 7 CFR 354.2 and 9 CFR 97.2 contain administrative instructions prescribing commuted traveltime allowances, which reflect, as nearly as practicable, the periods of time required for PPQ and VS 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 7 CFR 354.2 and 9 CFR 97.2 by adding commuted traveltime allowances for travel between certain locations in Texas, New Mexico, and Mexico. The new allowances are set forth in the rule portion of this document. In 9 CFR 97.2, we are also increasing the commuted traveltime allowance from 1 to 2 hours for Dallas-Fort Worth International Airport served from Fort Worth or Dallas, TX, within the metro area, and removing the commuted traveltime allowance for Dallas-Fort Worth International Airport served from Fort Worth or Dallas outside the metro area. This action is necessary to inform the public of the commuted traveltime between the dispatch and service locations.

We are also amending the table in 7 CFR 354.2 to change the entry for “Dallas-Fort Worth Regional Airport” to “Dallas-Fort Worth International Airport.” The corresponding entry in 9 CFR 97.2 has already been updated to reflect the change in the airport's name.

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

The statements in staff accounting bulletins are not rules or interpretations of the Commission, nor are they published as bearing the Commission's official approval. They represent interpretations and practices followed by the Division of Corporation Finance and the Office of the Chief Accountant in administering the disclosure requirements of the Federal securities laws.

The staff hereby adds Topic 14 to the staff accounting bulletin series. Topic 14 provides guidance regarding the application of Statement of Financial Accounting Standards No. 123 (revised 2004), Share-Based Payment. The staff also hereby amends the following staff accounting bulletins.

1. Topic 4.D.2. is modified to update the references in footnote 4 from APB Opinion No. 25, Accounting for Stock Issued to Employees (“Opinion 25”) and FASB Statement No. 123, Accounting for Stock-Based Compensation (“Statement 123”) to Statement 123R. Opinion 25 and Statement 123 were superseded by Statement 123R.

2. Topic 4.E. is modified to delete the references and related guidance to compensation and deferred compensation. Statement 123R requires compensation costs to be recognized in the financial statements as services are provided by employees and does not permit those costs to be recognized as deferred compensation on the balance sheet before services are provided.

3. Topic 5.T. is modified to update the references from “AICPA Interpretation 1 to Opinion 25” to “paragraph 11 of Statement 123R.” AICPA Interpretation 1 to Opinion 25 was superseded by Statement 123R.

The interpretations in this SAB express views of the staff regarding the interaction between Statement 123R and certain SEC rules and regulations and provide the staff's views regarding the valuation of share-based payment arrangements for public companies. Statement 123R was issued by the Financial Accounting Standards Board (“FASB”) on December 16, 2004. Statement 123R is based on the underlying accounting principle that compensation cost resulting from share-based payment transactions be recognized in financial statements at fair value.1 Recognition of compensation cost at fair value will provide investors and other users of financial statements with more complete and comparable financial information.2

Statement 123R addresses a wide range of share-based compensation arrangements including share options, restricted share plans, performance-based awards, share appreciation rights, and employee share purchase plans.

Statement 123R replaces Statement 123 and supersedes Opinion 25. Statement 123, as originally issued in 1995, established as preferable, but did not require, a fair-value-based method of accounting for share-based payment transactions with employees.

The staff believes the guidance in this SAB will assist issuers in their initial implementation of Statement 123R and enhance the information received by investors and other users of financial statements, thereby assisting them in making investment and other decisions. This SAB includes interpretive guidance related to share-based payment transactions with nonemployees, the transition from nonpublic to public entity 3 status, valuation methods (including assumptions such as expected volatility and expected term), the accounting for certain redeemable financial instruments issued under share-based payment arrangements, the classification of compensation expense, non-GAAP financial measures, first-time adoption of Statement 123R in an interim period, capitalization of compensation cost related to share-based payment arrangements, the accounting for income tax effects of share-based payment arrangements upon adoption of Statement 123R, the modification of employee share options prior to adoption of Statement 123R and disclosures in MD&A subsequent to adoption of Statement 123R.

The staff recognizes that there is a range of conduct that a reasonable issuer might use to make estimates and valuations and otherwise implement Statement 123R, and the interpretive guidance provided by this SAB, particularly during the period of the Statement's initial implementation. Thus, throughout this SAB the use of the terms “reasonable” and “reasonably” is not meant to imply a single conclusion or methodology, but to encompass the full range of potential conduct, conclusions or methodologies upon which an issuer may reasonably base its valuation decisions. Different conduct, conclusions or methodologies by different issuers in a given situation does not of itself raise an inference that any of those issuers is acting unreasonably. While the zone of reasonable conduct is not unlimited, the staff expects that it will be rare when there is only one acceptable choice in estimating the fair value of share-based payment arrangements under the provisions of Statement 123R and the interpretive guidance provided by this SAB in any given situation. In addition, as discussed in the Interpretive Response to Question 1 of Section C, Valuation Methods, estimates of fair value are not intended to predict actual future events, and subsequent events are not indicative of the reasonableness of the original estimates of fair value made under Statement 123R. Over time, as issuers and accountants gain more experience in applying Statement 123R and the guidance provided in this SAB, the staff anticipates that particular approaches may begin to emerge as best practices and that the range of reasonable conduct, conclusions and methodologies will likely narrow.

This document and all comments received by the U.S. DOT Docket Facility, Room PL-401, may be viewed through the Docket Management System (DMS) at http://dms.dot.gov. The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of this Web site.

An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.archives.gov/ and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara.

The FHWA noise regulations (23 CFR 772) were developed as a result of the Federal-Aid Highway Act of 1970 (Pub. L. 91-605, 84 Sat. 1713) and applied to Federal-aid highway construction projects. This regulation requires a State DOT to determine if there will be traffic noise impacts in areas adjacent to federally-aided highways when a project is proposed for the construction of a highway on a new location or the reconstruction of an existing highway to either significantly change the horizontal or vertical alignment or increase the number of through-traffic lanes.

Analysts must use a highway traffic noise prediction model to calculate future traffic noise levels and determine traffic noise impacts. The FHWA developed its first prediction model described in “FHWA Highway Traffic Noise Prediction Model” (Report No. FHWA-RD-77-108), December 1978.1

To incorporate over two decades of improvements in predicting highway traffic noise,as well as continued advancements in computer technology, the FHWA, with assistance from the Volpe National Transportation Systems Center in Cambridge, Massachusetts(Volpe Center) developed a new state of the art highway traffic noise prediction model in 1998, “FHWA Traffic Noise Model,” Version 1.0 (FHWA TNM).2 This model bases its calculations on totally new acoustical prediction algorithms as well as newly measured vehicle emission levels for automobiles, medium trucks, heavy trucks, buses and motorcycles.

The Volpe Center, using funds from the FHWA and 25 State departments of transportation, directed and assisted the development of the FHWA TNM to accurately analyze the extremely wide range of frequencies found in highway traffic noise. The FHWA TNM also allows noise analysts to predict noise for both constant-flow and interrupted-flow traffic and enables them to accurately predict the results of multiple noise barriers, as well as the effects of vegetation and rows of buildings along highways.

As part of the initial establishment of the FHWA technical procedures for the analysis of highway traffic noise, e.g., traffic noise measurement and prediction methodologies,the FHWA's noise regulation included references to “Sound Procedures for Measuring Highway Noise: Final Report ”3 and to vehicle emission levels. This was done to aid in everyone's knowledge and understanding of the new technology of highway traffic noise prediction. However, since this technology has now been well established and documented for more than two decades, the FHWA noise regulation no longer needs to include any reference to a measurement report or to vehicle emission levels.

With the development of the FHWA TNM, a new state of the art highway traffic noise prediction model, the FHWA has proposed to update 23 CFR part 772 to include this new model and remove reference to vehicle emission levels. Therefore, the FHWA published a notice of proposed rulemaking (NPRM) on August 20, 2004, (69 FR 51620)proposing to require the use of the FHWA TNM or any other noise model determined by the FHWA to be consistent with the FHWA TNM methodology.

The agency received comments from five State Departments of Transportation(Arizona, Colorado, Minnesota, New York and Pennsylvania), one State environmental agency (Minnesota Pollution Control Agency), a noise consultant from the URS Corporation, and one private citizen.

The New York and Pennsylvania State DOTs commented that they are currently using the FHWA TNM and have no objections amending the regulation to require the use of this methodology.

The Arizona State DOT commented it was in the process of implementing the use of the FHWA TNM and, thus, had no comment on the practical effects of the change in prediction models. The Arizona State DOT also offered an additional comment regarding the use of pavement types in the FHWA TNM. This comment is beyond the scope of this rule.

The Colorado State DOT commented that it generally supports the use of the FHWA TNM, and appreciated the FHWA's efforts to address the model's over predictions. This comment acknowledged the FHWA and Volpe Center's determination to correct the general over-predictions that FHWA TNM was making on vehicle emission levels. The FHWA TNM Version 2.5 is the result of these efforts, which essentially eliminates the vehicle emission level over-predictions.

The Colorado State DOT expressed its concern on using national vehicle noise emission levels (REMELs). The FHWA has determined that differences in vehicle noise emission levels are not the result of a State-specific vehicle fleet and that further studies of the effects of pavement (type, surface texture, and temperature) and atmospherics on traffic noise levels need to be completed to determine their influence on vehicle noise emission levels. Until the effects of pavement and atmospherics are researched in greater depth, the FHWA strongly recommends the use of the FHWA TNM's national vehicle noise emission levels and strongly discourages the development of State-specific vehicle noise emission levels.

The Colorado State DOT commented that it discovered several anomalies with the performance of the FHWA TNM related to pavement width, ground zones, and terrain lines. The FHWA and the Volpe Center have worked with the Colorado State DOT to resolve these issues. It was found that the anomalies stated by the Colorado State DOT were based on inappropriate comparisons. The sound level results, including trends, predicted with the FHWA TNM Version 2.5 were compared to expectations that were too generalized. The stated expectations did not always consider the specifics of each geometry and corresponding acoustical effects, and therefore were not location-dependent. A response has been sent to the Colorado State DOT on this matter offering detailed information on how to analyze highway sites to accurately identify location-dependent expectations. The FHWA and the Volpe Center will continue to offer the Colorado State DOT assistance in resolving their issues and providing guidance for those using the FHWA TNM in Colorado.

Lastly, the Colorado State DOT commented that it believes the FHWA TNM predicts greater noise reductions than the old prediction model, which may result in noise barrier with shorter heights. The FHWA disagrees because the validation data taken to date [see Validation of FHWAs Traffic Noise Model (TNM): Phase 1, August 2002 and Preview of Validation of FHWA's Traffic Noise Model (TNM): Phase 1 (TNM v2.5 Addendum), April 9, 2004 4 ] indicates that the FHWA TNM performs accurately when predicting noise barrier performance, and there are no inherent biases leading to the design of shorter noise barriers.

The Minnesota State DOT and the Minnesota Pollution Control Agency provided virtually the same two comments, one related to the FHWA TNM's methodology and the uncertainty in its ability to accurately predict noise levels, and the other related to the FHWA TNM's inability to calculate L10 to L50 noise levels.

The Minnesota State DOT and the Minnesota Pollution Control Agency commented that the Stamina 2.0 based MINNOISE Version 0.2 generally proved more accurate than the FHWA TNM. This is a concern for Minnesota since Minnesota State law requiring that public health and welfare be addressed using the most accurate methods reasonable available. The Minnesota DOT is basing this comment on a report they generated entitled “Mn/DOT Noise Model Comparison Summary” which compared the FHWA TNM and the measured data at several locations. A copy of “Mn/DOT Noise Model Comparison Summary,” August 26, 2004 was provided as an attachment with Mn/DOTs comments and is available on the docket. After a thorough review and analysis of this comparison report and of additional information requested and received from the Minnesota State DOT, the FHWA and the Volpe Center found no indication that the discrepancies presented in the comparison report are due to problems associated with the FHWA TNM program. In fact, the review revealed that the discrepancies between the FHWA TNM and the measured data presented in the report are the result of an inaccurate measurement technique and three inaccurate modeling techniques.

The inaccurate measurement technique relates to the accounting for wind speeds. The wind speeds presented in the comparison report exceeded the FHWA-prescribed limit of 12 miles per hour and should have been discoounted. The wind effects on sound propagation were also not considered when comparing measured data to predicted data. When wind is accurately accounted for in the model, comparative results improve between FHWA TNM and the measured data.

The three inaccurate modeling techniques include the inaccurate use of parallel barrier configurations, ground types, and pavement types. Although the effects of parallel barrier were accounted for in the Minnesota State DOT's noise model, the effects were not accounted for in the FHWA TNM predictions. When the parallel barrier module in the FHWA TNM was used, the results again showed a more favorable comparison between FHWA TNM and the measured data. The Minnesota State DOT applied the “field grass” ground type to all FHWA TNM predicitons. This ground type is often misused, and the use of a more appropriate ground type, such as lawn, loose soil, or hard soil, again improves comparative results for FHWA TNM and measured data. Lastly, the use of “average” pavement type of roadways was applied to all FHWA TNM calculations. The use of “average” pavement type is required for federally funded projects, but can be modified if substantiated and approved by hte FHWA. Pavements that are typically considered to be “loud,” i.e., transverse-tined concrete pavements, were present for at least two of the four measurement sites. Since the comment is claiming lack of accuracy in the FHWA TNM, the actual pavement type was used despite the required use of “average” pavement type in the model. When actual pavement type is considered in the model, comparative results again improve for FHWA TNM versus the measured data.

The second comment from the Minnesota State DOT and the Minnesota Pollution Control Agency indicated that Minnesota State law requires the use of L10 and L50 descriptors, which are not provided by the FHWA TNM. The Minnesota State DOT, due to its State law, will be provided the capabilities to calculate L10 and L50 in connection with the FHWA TNM. The FHWA and the Volpe Center are currently developing these capabilities, and will provide them to the Minnesota State DOT once completed. It is estimated that the L10 and L50 capabilities will be provided to Minnesota State DOT in late Spring 2005. The Minnesota State DOT will be the only State DOT to receive this capability, and will not be required to use the FHWA TNM until this capability is provided to them.

A noise consultant of the URS Corporation indicated that he agreed with the proposal to require the use of the FHWA TNM. Additionally, the consultant recommended updating, rather than removing, the reference to the FHWA noise measurement report, indicating that local regulations using the report reference would become moot if the report reference were removed. The FHWA notes that FHWA reports may be referenced in local regulations, regardless of their inclusion in or exclusion from the FHWA noise regulations. Lastly, the consultant offered an additional comment that was beyond the scope of the NPRM.

Finally, a private citizen offered a comment stating that the regulations from 1970 are outdated and obsolete, and should be updated.

After considering all the submitted comments, the FHWA has decided to go final with the proposed rule with no changes.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking will be minimal, since the final rule simply revises requirements for traffic noise prediction on Federal-aid highway projects to be consistent with the current state of the art technology for traffic noise prediction.

This final rule will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 60 1-612) the FHWA has evaluated the effects of this action on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. This final rule addresses traffic noise prediction on certain State highway projects. As such, it affects only States, and States are not included in the definition of small entities.

This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120.7 million or more in any one year (2 U.S.C. 1532). The definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal government. the Federal-aid highway program permits this type of flexibility.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and the FHWA has determined that this action does not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States. Nothing in this final rule directly preempts any State law or regulation or affects the States' ability to discharge traditional State governmental functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

This final rule contains no collection of information requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and has determined that this action will not have any effect on the quality of the human and natural environment because it will update the specific reference to acceptable highway traffic noise prediction methodology and remove unneeded references to a specific noise measurement report and vehicle noise emission levels.

This action will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Government Actions and interface with Constitutionally Protected Property Rights.

This final rule meets applicable standards §§ 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 final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This action does not involve an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

The FHWA has analyzed this final rule under Executive Order 13175, dated November 6, 2000, and believes that this action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

We have analyzed this final 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 adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the Spring and Fall of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

This document contains final regulations amending 26 CFR part 301 under section 7602 of the Internal Revenue Code of 1986. The final regulations define officers or employees of the Office of Chief Counsel as persons who may be designated to receive summoned books, papers, records, or other data or to take testimony under oath. The final regulations also provide that more than one person may be designated to receive summoned information and testimony. Additionally, the final regulations clarify that a summons need not show the designation of the specific officer or employee who is authorized to take testimony and receive summoned materials.

On September 10, 2002, temporary regulations (TD 9015; 67 FR 57330) and a notice of proposed rulemaking (REG-134026-02; 67 FR 57354) containing these regulatory provisions were published in the Federal Register. No written comments were received on the temporary and proposed regulations; no public hearing was requested, and none was scheduled or held. Accordingly, the final regulations adopt the rules of the temporary regulations without change.

This document contains final regulations amending the Procedure and Administration Regulations (26 CFR part 301) under section 7602 of the Internal Revenue Code of 1986. The final regulations make permanent three changes established in the temporary regulations regarding the persons who may be designated to receive summoned books, papers, records, or other data or to take testimony under oath. Although IRS examiners will continue to be responsible for developing and conducting examinations, these changes will allow, among other things, officers and employees of the Office of Chief Counsel to participate fully along with an IRS employee or officer in a summoned interview.

For purposes of identifying persons who may receive summoned information or take testimony under oath, the final regulations define an officer or employee of the IRS to include all persons who administer and enforce the internal revenue laws or any other laws administered by the IRS and who are appointed or employed by, or subject to the directions, instructions, or orders of the Secretary of the Treasury or the Secretary's delegate. This amendment clarifies that officers and employees of the Office of Chief Counsel may be designated as persons authorized to take testimony under oath and to receive summoned books, papers, records, or other data.

The final regulations also expressly provide that more than one person may be designated to receive summoned information or to take testimony under oath during a summoned interview. Finally, the final regulations clarify the existing regulations by providing that a summons document need not designate the specific officer or employee who is authorized to take testimony under oath and to receive and examine books, papers, records, or other data.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply. Pursuant to section 7805(f), the preceding temporary regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.

The principal author of this regulation is Elizabeth Rawlins of the Office of the Associate Chief Counsel (Procedure and Administration), Collection, Bankruptcy and Summonses Division.

This rule designates areas on the frozen surface of Lake Superior and a route on the mainland unit for use by snowmobiles, off-road motor vehicles, and ice augers or power engines within the established boundaries of Apostle Islands National Lakeshore. The areas designated are the frozen surface of Lake Superior surrounding every island from the shoreline out to the Lakeshore's 1/4 mile boundary, and the frozen surface of Lake Superior from Sand Point to the mainland unit's eastern boundary. Motorized access will end at the shoreline of the islands. The route designated is the 1/4 mile section of the Big Sand Bay Road that passes through the mainland unit to non-NPS property.

The enabling legislation for Apostle Islands National Lakeshore (16 U.S.C.; 460w-460w-7), specifically authorizes recreational use of the Lakeshore by the public. It further includes provisions for hunting, fishing, and trapping on the lands and waters within the boundaries, with certain limitations allowed for public safety administration, fish or wildlife management, or public use and enjoyment.

The Lakeshore comprises 21 islands and a 12-mile strip of mainland shoreline lying at the northern end of the Bayfield peninsula in Northern Wisconsin. Jurisdiction by the National Park Service extends for a distance of one-quarter mile offshore on the waters of Lake Superior surrounding each island and along the mainland coast. During the winter months, safe access up to shoreline areas and traditional hunting, fishing, and trapping areas frequently requires over ice travel by snowmobile and various forms of off-road motor vehicle transportation within the quarter-mile jurisdiction.

The Apostle Islands archipelago is roughly 287,000 acres in size, including all of the water between the islands. Of this 287,000 acres, less than 40,000 acres are contained within the park's islands, and an additional 27,500 acres are water, leaving over 210,000 acres of water within the archipelago that lie outside the jurisdiction of the NPS. In other words, the NPS has jurisdiction over only 15% of the waters between all of the islands.

The use of snowmobiles, off-road motor vehicles, and ice augers or power engines was common prior to the establishment of the Lakeshore and continues through the present day. The use of ice augers or power engines is necessary to provide access to the water through the ice for authorized fishing activities. Ice augers are typically operated only once a day at the beginning of ice fishing activities. The length of operation is chiefly dependent on the thickness of the ice, which can vary from four inches to more than three feet. Most ice augers can cut through the ice surface in less than a few minutes. The exclusive purpose of operation is to cut or bore small holes in the frozen surface of Lake Superior to allow fishing equipment to pass freely.

These uses continue as a safe, common, and necessary method of access up to shorelines and other locations inside Lakeshore boundaries and corridors to areas outside the Lakeshore boundaries for gaining access to fishing and recreational areas during winter.

This designation of water surfaces and routes within the Lakeshore provides the public with the means to safely navigate around rough ice, cracks, pressure ridges and other dangerous ice conditions on frozen Lake Superior. It facilitates traditional and legislatively authorized uses such as hunting, fishing and trapping while also providing shoreline access for winter camping, hiking, snowshoeing, skiing, and other non-motorized recreational activities within the Lakeshore.

Under current NPS regulations, 36 CFR 2.18 and 4.10, the use of snowmobiles and off-road motor vehicles within areas of the National Park System is prohibited, except on water surfaces and designated routes that are used by motorboats or motor vehicles during other seasons. These water surfaces and routes must be designated and promulgated as special regulations. The use of portable engines associated with a power ice auger is allowed by permit only under 36 CFR 2.12(a)(3).

National Park Service Management Policies Section 8.2.2.1 states that any restriction of appropriate recreational uses will be limited to what is necessary to protect park resources and values, to promote visitor safety and enjoyment, or to meet park management needs. It also states the Superintendent will develop and implement visitor use management plans and take management actions, as appropriate, to ensure that recreational uses and activities within the park are consistent with authorizing legislation and do not cause unacceptable impacts to park resources or values.

After reviewing the issues surrounding the use of snowmobiles, off-road motor vehicles, and ice augers or power engines, NPS determined that the uses authorized in the rule are consistent with the enabling legislation and will not result in impairment of resources, values, or purposes for which the Lakeshore was established. Snowmobiles and off-road motor vehicles are used as a means of transportation to a specific park location, where the user participates in a non-motorized recreational activity. When the snowmobile or off-road motor vehicle user reaches his or her destination, the snowmobile or off-road motor vehicle is stopped with the engine off, minimizing noise, pollution, and other associated impacts. By contrast, recreational touring, which is not allowed under this rule, would involve continuous or prolonged operation of a snowmobile or off-road motor vehicle which would increase noise, pollution, and other associated impacts.

The designation of areas and routes on the frozen surface of Lake Superior and the mainland road is consistent with water surfaces and routes used by powerboats and motor vehicles during other times of year. These regulations limit the designation of specific areas, and further restrict designation of routes to surfaces used by motor vehicles during other times of year. Because of these limitations, no additional snowmobile or off-road motor vehicle areas will be established. Hunting, fishing, trapping and non-motorized recreational opportunities on the islands will continue to be permitted as in the past. Operation of power engines in other areas or for other purposes will continue to be subject to authorization by permit only.

Less than 15 percent of the ice on Lake Superior that surrounds the islands is located within the Lakeshore's 1/4-mile boundary. Exterior areas are owned by the State of Wisconsin and allow snowmobile and off-road motor vehicle operation pursuant to State regulations. With virtually unlimited snowmobile and off-road motor vehicle use in State areas, which are directly adjacent to park boundaries, the most significant factor for noise and emissions in island and mainland locations inside the Lakeshore boundary is wind speed and direction rather than where snowmobiles and off-road motor vehicles are operated. Sound and emissions can travel long distances over the hard frozen surface of Lake Superior.

The conditions that allow for reasonably safe snowmobile and off-road motor vehicle access on the frozen surface of Lake Superior are generally limited to late December through mid-March. During this time period, a majority of the wildlife has either migrated from the area or is in hibernation. Since snowmobiles and off-road motor vehicles are not permitted to operate outside of designated roads on the mainland or on the islands themselves, no impact is expected on the wintering white-tailed deer population, other wildlife, or the snow-covered vegetation. Therefore, it is anticipated that adoption of this regulation will not adversely affect the resources of the Lakeshore.

Allowing the use of snowmobiles, off-road motor vehicles, and ice augers or power engines on the frozen surface of Lake Superior is not expected to dramatically increase visitation to the area. Traditional users include fishermen and recreational users that engage in winter hunting, trapping, camping, hiking, snowshoeing, skiing, and other non-motorized recreational activities.

Designated state and county trails for snowmobile and off-road motor vehicle use are abundant outside the Lakeshore throughout Ashland and Bayfield Counties. Bayfield County contains more than 430 miles of maintained snowmobile trails and in excess of 108 miles of all-terrain vehicle routes. Ashland County has more than 205 miles and 132 miles respectively. There is little demand for recreational touring on the ice of Lake Superior.

Due to the short duration of accessibility, instability of the ice at many times and limited need for access to non-NPS property outside the Lakeshore boundary, it is not anticipated that a large increase in snowmobiles or off-road motor vehicles will result from adopting these special regulations. With current use limited and no significant increase expected, no measurable economic impact is anticipated.

The NPS considers that local residents, area businesses, and park visitors are best served by allowing for the use of snowmobiles, off-road motor vehicles, and portable ice augers/engines in the designated areas and routes.

A proposed regulation was published in the Federal Register on August 12, 2004 (69 FR 49841). Public comment was invited. The comment period closed October 12, 2004.

During the public comment period, the NPS received 408 comments via U.S. Mail and electronic mail (e-mail).

All comments received from neighboring city, county, and State governments, agencies, and officials were in support of the proposed rule. The letters of support expressed concern for the safety of fishermen and park users. Of the comments received from individuals who support the proposed rulemaking, 94 percent are residents in the Apostle Islands (Chequamegon Bay) area and 76 percent are residents of the State of Wisconsin.

Comment: The operation of snowmobiles, off-road motor vehicles, ice augers or power engines on the frozen surface of Lake Superior is necessary to avoid hazardous ice, pressure ridges, and cracks, and provide reasonable and safe access to fishing areas and island shoreline locations.

Response: NPS agrees with respondents and supports efforts to maintain visitor access and safety.

No comments were received in support of snowmobiles or off-road vehicles for the purpose of recreational touring.

Of the comments received from individuals who wrote to oppose the proposed rulemaking, 5 percent are from residents from the State of Wisconsin. Over 98 percent of the comments in opposition to the proposed rule were received from the Bluewater Network internet Web site.

The Bluewater Network Web site offered internet users prepared text that could not be modified and the option for individuals to add comments about personal experiences relating to snowmobiles, off-road vehicles, and other issues. Fifty-eight respondents expressed concern about noise, pollution, and the negative impacts on wildlife and their outdoor experience. The prepared text from the Bluewater Network addressed five comments that are listed below. The NPS response follows each comment.

Comment: The Bluewater Network (and 340 form letter comments initiated from its Web site) commented that the current prohibition on ORV/snowmobiles should be maintained.

Response: NPS recognizes that snowmobile and off-road vehicle (ORVs) operation around the Apostle Islands on frozen Lake Superior is a historic and traditional use that was in existence prior the establishment of the Apostle Islands National Lakeshore in 1970. NPS has determined that the continuation of these uses for access on designated areas and routes will enhance public safety and facilitate authorized uses without causing unacceptable impacts on the resources, values or purposes of the Lakeshore.

Comment: The Bluewater Network (and 340 form letter comments initiated from its Web site) commented that the proposed rule does not distinguish between ice fishing and recreational use, or how the regulations would be enforced.

Response: Snowmobiles and off-road motor vehicles are used as a means of transportation to a specific park location, where the user participates in a non-motorized recreational activity. When the snowmobile or off-road motor vehicle user reaches his or her destination, the snowmobile or off-road motor vehicle is stopped with the engine off. Recreational touring, which is not allowed under this rule, involves continuous or prolonged operation of a snowmobile or off-road motor vehicle. Park rangers will enforce this rule by monitoring visitor use and ice conditions. It is reasonable to expect users to travel around hazards on the ice and follow safe routes to access shoreline locations. Park rangers will verify that visitors are fishing, camping, snowshoeing, skiing, hiking or participating in other non-motorized activities based on their observed travel within the park, clothing, equipment, tools, and other accessories in their possession.

Comment: The Bluewater Network (and 340 form letter comments initiated from its Web site) commented that NPS should mark access corridors to prime fishing spots.

Response: The number of possible fishing spots (locations) around the Apostle Islands on Lake Superior is virtually unlimited. Fishermen choose areas primarily by existing ice conditions with safety as the paramount issue. Ice must be of adequate thickness to support people, fishing equipment, and methods of transport. Unfortunately, the frozen surface of Lake Superior can change on a daily basis due to variable winds, waves, currents, and temperature conditions. It is typical for winter ice to form between some of the inner islands in the Apostle Islands archipelago, but ice around all of the islands is unusual due to the variety of weather conditions listed above. It is a rare occurrence for all of Lake Superior to freeze over. Ice that forms over a period of days or weeks can be destroyed in hours by high winds, shifting ice, and/or the forces of wave action. The pressure of moving ice can create cracks, fissures, and areas of open water without warning. Hence, there is no practical way to mark or maintain the unlimited number of corridors or routes to fishing locations.

Comment: The Bluewater Network (and 340 form letter comments initiated from its Web site) commented that the Rule should prohibit snowmobile/ORV use on waters around those islands that are recommended for wilderness protection under alternative C in the 2004 Apostle Islands National Lakeshore Wilderness Suitability Study.

Response: The mainland unit, all of Sand, Basswood, and Long Islands, the lighthouses, and other existing developed areas of the Lakeshore, and all waters and frozen areas of Lake Superior were excluded from wilderness protection with the designation of the Gaylord A. Nelson National Wilderness (Pub. L. 108-447) on December 8, 2004. The wilderness boundary begins at the high water mark for each island having lands designated as wilderness, and proceeds inland. Operation of boats, snowmobiles, and off-road vehicles is limited to the waters and frozen surface of Lake Superior, which was not included in the wilderness designation. The use of motorized vessels and vehicles allow visitors safe access to island shorelines and other locations on Lake Superior both inside and outside of Lakeshore boundaries for fishing and non-motorized recreational activities. Regardless of what the NPS does, snowmobiles and ORVs will be legal 1/4 mile from shore. Prohibiting them within the Lakeshore's 1/4 mile boundary will not create quiet zones because of the long distances that sound travels over water and ice. Limiting or restricting access to shorelines would effectively prevent many park users from accessing proposed wilderness trailheads.

Comment: The Bluewater Network (and 340 form letter comments initiated from its Web site) commented that the NPS rule should require the use of advanced technologies, such as four stroke engines, for snowmobiles used at Apostle Islands National Lakeshore.

Response: Advanced technologies that reduce possible pollution are preferable, but it is impractical to require them now at the Apostle Islands for several reasons.

First, snowmobiles and off-road motor vehicles are used as a means of transportation to a specific park location, where the user participates in a non-motorized recreational activity. When the snowmobile or off-road motor vehicle user reaches his or her destination, the snowmobile or off-road motor vehicle is stopped with the engine off, minimizing noise, pollution, and other associated impacts. By contrast, recreational touring, which is not allowed under this rule, would involve continuous or prolonged operation of a snowmobile or off-road motor vehicle which would increase noise, pollution, and other associated impacts.

Second, Apostle Islands National Lakeshore has no “gate” or entrance through which all snowmobiles must pass before entering the park. The Lakeshore contains over 154 miles of shoreline on Lake Superior with virtually unlimited access points. Hence there is no practical way to stop non-complying machines from entering the park or assure compliance with technological criteria.

The Apostle Islands archipelago is roughly 287,000 acres in size, including all of the water between the islands. Of this 287,000 acres, less than 40,000 acres are contained within the park's islands, and an additional 27,500 acres are water, leaving over 210,000 acres of water or approximately 85% of the area, within the archipelago, outside of NPS jurisdiction. Requiring visitors to use only advanced technologies in an area that has so little NPS jurisdiction is not practical.

Lastly, there is no snowmobile rental industry in the park area, nor any fleets of snowmobiles owned by companies. Virtually all use in the park is by individuals, and virtually all machines are individually-owned. Imposing a technology requirement in the Lakeshore that exceeds other state and federal legal requirements would impose a high burden on individual users of the park which would not be justified here given the issues discussed above.

Comment: The National Parks Conservation Association (NPCA) commented on the National Park Service's “lack of compliance with the National Environmental Policy Act” (NEPA). While supporting the implementation of the rule, NPCA urges that it be conditioned upon a future finding of no significant impact consistent with a more detailed NEPA analysis.

Response: The National Park Service has prepared an Environmental Assessment and Finding of No Significant Impact for the rule, in compliance with NEPA. Copies are available from Apostle Islands National Lakeshore at the address listed above.

The 27,500 acres of water within NPS jurisdiction is fragmented into 24 separate units (21 islands and 3 sections on mainland unit). Only 15% of the waters between all of the islands is located within park boundaries. Regardless of what the NPS decides with respect to these issues, snowmobiles, ORVs, and power augers will still be legal on more than 210,000 acres or 85% of the waters outside of park boundaries within the Apostle Islands archipelago.

Although snowmobile and ORV use within the Apostle Islands archipelago is not without any environmental impacts, the proposed rule is expected to have less than significant impacts on the human environment in the Apostle Islands National Lakeshore for the following reasons:

Comment: The Red Cliff and Bad River Bands of Lake Superior Chippewa Indians both stated that they wanted written assurance that the proposed rule would not be applied to regulate the Tribes' treaty-reserved rights either within or outside of their reservations and requested that such assurance be included in either the notice of the final rule or in the rule itself.

Response: Nothing in this rule modifies, alters, or affects any treaty rights.

This rule relieves restrictions on snowmobile, off-road vehicle, ice auger and power engine use that would ordinarily exist under NPS regulations. For this reason, the Department has determined that good cause exists to waive the normal 30-day delay and make this rule effective upon publication as allowed by 5 U.S.C. 553(d)(1).

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Snowmobiles and off-road motor vehicles (all terrain vehicles) are not available for sale, rental, or lease through local businesses or tour companies within the Apostle Islands (Chequamegon Bay) area. Snowmobiles and off-road motor vehicles are almost exclusively privately owned or transported to the region from sources outside of the local geographic area.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies or controls. This rule supports local government and community plans for winter recreation that already exists.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues. This rule codifies long-existing uses at Apostle Islands National Lakeshore.

The Department of the Interior certifies that this rulemaking will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Snowmobiles and off-road motor vehicles (all terrain vehicles) are not available for sale, rental, or lease through local businesses or tour companies within the Apostle Islands (Chequamegon Bay) area. Snowmobiles and off-road motor vehicles are almost exclusively privately owned or transported to the region from sources outside of the local geographic area.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. 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.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and does not impose any other requirements on other agencies, governments, or the private sector. The use of snowmobiles, off-road vehicles, and ice augers or power engines on the frozen surface of Lake Superior and the mainland unit is a voluntary activity.

In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule codifies existing snowmobile, off-road vehicle, ice auger or power engine use on the frozen surface of Lake Superior and mainland unit. No taking of personal property will occur as a result of this rule.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule codifies existing snowmobile, off-road vehicle, ice auger or power engine use on the frozen surface of Lake Superior and mainland unit and does not place any requirements on State or local governments.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required.

As discussed above, the National Park Service has prepared an Environmental Assessment and Finding of No Significant Impact for this rule in compliance with NEPA. Copies are available from Apostle Islands National Lakeshore at the address listed above.

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2 have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. Park staff consulted with the Red Cliff and Bad River Band of Lake Superior Chippewa and the Great Lakes Indian Fish and Wildlife Commission. In return the park received letters generally supporting the proposed regulations from the Red Cliff and Bad River Bands and verbal support from the Fish and Wildlife Commission.

The proposed rule was published in the October 1, 2004, Federal Register (69 FR 58875) for a 60-day public comment period. NARA notified several researcher organizations about the proposed rule. A copy of the proposed rule was also posted on the NARA Web site. NARA received three responses to the proposed rule from the public.

NARA proposed, in response to a petition for proposed rulemaking, to extend the timeframe in which a person may appeal the denial of a request for access to Presidential records made under the Presidential Records Act (PRA) (44 U.S.C. 2201-2207). Two public commenters agreed with the proposed regulation changes. One member of the public objected to NARA's proposed length of appeal time. The commenter said that a requester should be able to appeal NARA's letter of denial “within 35 working days after the requester receives written notification,” not “within 35 calendar days of the date of NARA's denial letter” as NARA proposed.

We did not adopt that recommendation. The commenter argued that the proposed length in timeframe was unfair because the delivery of NARA's denial letter could be considerably delayed. The commenter said that the appeal timeframe should continue to be based on when the requester receives the denial, not the date of NARA's denial letter.

NARA proposed the timeframe requested by the petitioners, which was based on the timeframe for appeals NARA permits under the provisions of the Freedom of Information Act (FOIA) (see 36 CFR 1250.72(a)) and the Privacy Act (PA) (see 36 CFR 1202.56(a)). The petition cited the following compelling reasons for requesting an extension to the length of time to file an appeal under the PRA:

• NARA's longer appeal timeframes for FOIA and PA denials;

• The disparity with the lengthy waits requesters have, only to learn of a denial of access; and,

• Extenuating circumstances that make it difficult for requesters to appeal in 10 days after receipt of NARA's denial. Among the latter are requesters being on vacation, business trips, and academic absences like visiting professorships and sabbaticals.

The petitioners' request is based on well-recognized and widely accepted practices in implementing the FOIA. NARA believes that this rule will be of assistance to requesters of Presidential records.

This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB). As required by the Regulatory Flexibility Act, it is hereby certified that this rule will not have a significant impact on a substantial number of small entities because this rule applies to the public. This rule does not have any federalism implications. This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NOX sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing RACT for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) All sources covered by a CTG issued prior to November 15, 1990; and

(3) All major non-CTG sources.

The Pennsylvania SIP already has approved RACT regulations and requirements for all sources and source categories covered by the CTGs. The Pennsylvania SIP also has approved regulations to require major sources of NOX and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. These regulations are commonly termed the “generic RACT regulations”. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead establishes procedures for imposing case-by-case RACT determinations. The Commonwealth's SIP-approved generic RACT regulations consist of the procedures PADEP uses to establish and impose RACT for subject sources of VOC and NOX. Pursuant to the SIP-approved generic RACT rules, PADEP imposes RACT on each subject source in an enforceable document, usually a Plan Approval (PA) or Operating Permit (OP). The Commonwealth then submits these PAs and OPs to EPA for approval as source-specific SIP revisions.

On August 30, 2004, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for three sources of VOC. The Commonwealth's submittals consist of PAs and OPs which impose VOC RACT requirements for each source.

Copies of the actual PAs and OPs imposing RACT and PADEP's evaluation memoranda are included in the electronic and hard copy docket for this final rule. As previously stated, all documents in the electronic docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Publicly available docket materials are available either electronically in RME or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. The table below identifies the sources and the individual PAs and OPs which are the subject of this rulemaking.

EPA is approving these RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in its SIP-approved generic RACT regulations applicable to these sources. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC RACT for three major of sources. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on May 31, 2005 without further notice unless EPA receives adverse comment by May 2, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for three named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule approving source-specific RACT requirements for three sources in the Commonwealth of Pennsylvania does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

I. Background

In FR Doc. 04-24758 of November 15, 2004 (69 FR 66236), there were a number of technical errors that we are identifying and correcting in the “Correction of Errors” section of this correcting amendment. Additionally, there are various revisions to Addenda B, C and F.

In Addenda B and C, we assigned incorrect status indicators to the following CPT and HCPCS codes: Page 66429 for CPT codes 0066T and 0074T, page 66502 for CPT code 36415, page 66504 for CPT code 37195, pages 66682 and 66688 for HCPCS code G0363. We also assigned incorrect global periods for the following CPT and HCPCS codes: Page 66539 for CPT code 54150; pages 66638 and 66687 for CPT codes 91034, 91034-26, 91034-TC, 91035, 91035-26, 91035-TC, 91037, 91037-26, 91037-TC, 91038 91038-26, 91038-TC, 91040, 91040-26, 91040-TC; and pages 66682 and 66688 for G0350, G0354 and G0358. These corrections are reflected in section II.C.1 of this correcting amendment.

The short descriptors for the following HCPCS codes were listed incorrectly on page 66681: G0324, G0325, G0326 and G0327. The corrected descriptors are shown in section II.C.1 of this correcting amendment.

Incorrect practice expense relative value units (RVUs) were shown for the following CPT codes: Pages 66546 and 66685 for CPT code 58356; page 66557 for CPT codes 62367 and 62368; page 66614 for CPT code 77418; pages 66627 and 66686 for CPT codes 78811-26, 78812-26, 78813-26, 78814-26, 78815-26 and 78816-26; page 66629 for CPT code 88125 and 88125-TC; pages 66633 and 66687 for CPT codes 88367, 88367-TC, 88368, 88368-TC and 89220; and page 66665 for CPT code 96567. The corrected RVUS are shown in section II.C.2 of this correcting amendment.

On page 66666, we inadvertently included work and malpractice RVUs for acupuncture services, CPT codes 97810, 97811, 97813 and 97814 and there services are not covered by Medicare. We typically do not publish RVUs for services that Medicare does not cover. Instead, we list these services with “0.00's” in the RVU columns. This correction is reflected in section II.C.2 of this correcting amendment.

The following HCPCS codes were discussed on page 66308 of the rule but were inadvertently omitted from page 66683 of Addendum B: G9021, G9022, G9023, G9024, G0925, G9026, G9027, G9028, G9029, G9030, G09031 and G9032. The HCPCS codes are shown in section II.C.3 of this correcting amendment.

On page 66900, the title should be corrected to read “Addendum L.”

In the regulation text we made technical omissions that should have been included in §§ 403.766, 414.39, and 424.80. The corrections are reflected in section II.B. of this correcting amendment.

In FR Doc. 02-37639 of November 15, 2004 (69 FR 66236), make the following corrections—

1. Under “For Further Information Contact” on page 66236, third column and on page 66237 in the first column make the following corrections:

Bill Larson (410) 786-4639 or Tiffany Sanders (410) 786-1948 for issues related to coverage of an initial preventive physical exam.

Joyce Eng (410) 786-4619 for issues related to coverage of cardiovascular screening tests.

Betty Shaw (410) 786-4165 for issues related to coverage of diabetes screening tests.

Steve Berkowitz (410) 786-0277 for issues related to coverage of routine costs associated with certain clinical trials.

Karen Daily (410) 786-0189 for issues related to clinical conditions for payment of covered items of durable medical equipment.

2. On page 66237, third column, start a new line after “Section VI. Five-Year Refinement of Relative Value Units” and before “Section VII. Update to the Codes for Physician Self-Referral Prohibition”.

3. In Table 2, “Equipment Items Needing Specialty Input for Pricing and Proposed Deletions”, on page 66252 under the column labeled “Commenter response”, the price referenced for neurobehavioral status instrument-average was listed incorrectly. This should be corrected to read “Submitted price of $13,635”.

4. In table 5 and table 7 on pages 66268 and 66270, we incorrectly used the specialty description “Osteopathic Manipulative Therapy.” This should be revised to read “Osteopathic Manipulative Medicine.”

5. On page 66306, first column, last sentence, in the response, we erroneously stated “Physicians should use HCPCS code G0352 for injections previously billed under CPT code 90783.” This is incorrect. This sentence should be corrected to read “Physicians should continue using CPT code 90783 when billing for an intra-arterial therapeutic or diagnostic injection.

6. On page 66369, in the first column, first paragraph, third sentence, “CRP codes” should be corrected to read “CPT codes” and in the first line of the second column, “work PVUs” should be corrected to read “work RVUs.”

7. On page 66385, the statutory formula that follows the first sentence in the third column did not print legibly. The referenced formula and information should read as follows:

8. In the first column, second paragraph, second sentence on page 66404 we state “Payment in 2005 for G0351 (the comparable code) will be $125.69.” This should be corrected to read as follows “Payment in 2005 for G0357 (the comparable code) will be $125.69.”

9. On page 66408, the second column, the last sentence in the first full paragraph, the referenced estimate related to utilization growth for rheumatology is incorrectly stated as 9 percent. This should be corrected to read “would increase by 16 percent.”

10. On page 66412, third column, following table 46, line 4, the discussion concerning sections 303-304, the first complete sentence beginning “In addition, we are also paying a supplying fee * * *” is corrected to read as follows: “In addition, we are also paying a supplying fee of $50 for the initial immunosuppressive prescription in the first month after a beneficiary has a transplant and a per prescription supplying fee of $24 for each supplied immunosuppressive prescription thereafter and for each supplied oral anti-cancer and oral anti-emetic prescription.”

1. In Addenda B and C, the following CPT and HCPCS codes are corrected to read as follows:

In FR Doc. 04-24787 of November 15, 2004 (69 FR 66922), there were several errors that are identified in the “Summary of Errors” section and corrected in the “Correction of Errors” section below. In addition to clarifying ambiguities and correcting typographical errors and incorrect references, this document is a supplement to the document published on November 15, 2004, entitled “Medicare Program; Prospective Payment System for Inpatient Psychiatric Facilities” (hereinafter referred to as the IPF PPS final rule or final rule) because it includes a timely submitted comment and our response that we inadvertently failed to include in the final rule. The provisions of this correction notice are effective as if they had been included in the final rule. Accordingly, the corrections are effective January 1, 2005.

In the November 15, 2004 final rule, in payment calculation examples, we stated that we computed a wage adjustment factor for each case by multiplying the Medicare 2005 hospital wage index for each facility by the labor-related share and adding the non-labor share. We used the correct labor share value of 72.247 percent on page 66953 in Table 8 of the final rule. However, we inadvertently did not use the correct labor-related and non-labor share values in other portions of the final rule. Instead of using 72.247 percent for the labor share and 27.753 percent for the non-labor share, we used a value of 72.528 percent for the labor share and 27.472 percent for the non-labor share. This error only affected the values in the payment calculation examples on pages 66942, 66943, 66960, and 66961 of the final rule (See sections III.A.9, III.A.10 and the values in the outlier calculation example in section III.A.25 of this correction notice). These errors did not have any effect on actual payments. The table in Addendum A on page 66982 of the final rule that contains the labor and non-labor portion of the Per Diem Rate is also corrected in section III.C of this correction notice. The table reflects the incorrect percentages for the labor- and non-labor-related shares, and therefore the dollar amounts are incorrect. However, as with the above examples, this error does not represent a change in policy from the final rule, and it did not affect any actual Medicare payments. In addition, we issued Change Request 3541 (CR3541), Transmittal 384, on December 1, 2004 that clarified the correct labor and non-labor portions of the Federal per diem base rate.

One of the patient-level adjustments we proposed was a comorbidity adjustment. We provided a comorbidity list in the preamble of the proposed rule (68 FR 66930 and 66931). In the final rule, we made changes to the proposed IPF PPS comorbidity category list. We revised the list by: (1) Adding a new category entitled “Developmental Disabilities”; (2) deleting the HIV category and moving it into the “Infectious Diseases” category; and (3) changing the titles of two categories, “Malignant Neoplasms” to “Oncology Treatment,” and “Atherosclerosis of the extremity with Gangrene” to “Gangrene.” However, we inadvertently published several inconsistencies in the list of comorbidities. In order to receive the comorbidity adjustment for malignant neoplasms, we reported that IPFs will be required to code the ICD-9-CM code for the specific malignant neoplasm from ICD-9-CM chapter 2 codes (140 through 239) and one of the two ICD-9-CM procedures codes (chemotherapy (V58.0) or radiation treatment (V58.1)) to indicate the treatment modality the patient received. The ICD-9-CM chapter 2 codes for Neoplasm actually includes both benign and malignant neoplasm codes. Therefore, in order to be consistent with our policy, we are clarifying in section III.A.7.c of this correction notice that we are including all of the codes in ICD-9-CM chapter 2 for Neoplasm. We are also deleting the word “malignant” in the three places it appears on page 66939 in the final rule. In addition, we inadvertently reported V codes instead of the ICD-9-CM radiation and chemotherapy procedure codes. In order to be consistent with our policy, we deleted the V codes and reported the correct ICD-9-CM procedure codes. We are clarifying the policy in sections III.A.7 through III.A.13 of this correction notice.

Several ICD-9-CM codes were inadvertently omitted or reported incorrectly in the preamble of the final rule. These mistakes include: Chronic Obstructive Pulmonary Disease (for which we incorrectly reported code V461 instead of V4611, and neglected to report code V4612); Infectious Diseases category (for which we incorrectly reported code 0100 instead of code 01000); Oncology Treatment category (for which we incorrectly reported code 140 instead of code 1400); and Renal Failure, Acute category (for which we incorrectly reported codes 6363 and 6373, and neglected to report several codes). In addition, we inadvertently omitted one code from under the Drug and/or Alcohol Induced Mental Disorders. We are also revising the Diabetes category to include both Type I and Type II Diabetes because this comorbidity category contains diagnosis codes for both types of Diabetes and we neglected to include Type II in the final rule. We are correcting these mistakes in sections III.A.8.a through III.A.8.g and section III.A.11 of this correction notice.

On page 66945 of the preamble, we included a claims processing description that we believe is operational and therefore inappropriate for inclusion in the final rule. In the preamble of the final rule on page 66966, we indicate that we will issue operational instructions to address specific billing issues. Therefore, we are deleting the paragraph on page 66945 that explains the processing of claims for the IPF PPS (see section III.A.12.f of this correction). The coding logic that identifies the primary diagnosis code as non-psychiatric and searches the secondary codes for a psychiatric code to assign a DRG code for an adjustment will be provided in the claims processing instructions. In the event that the coding logic is changed in the future, we need only make changes to the claims processing instructions rather than to the regulations.

In the Code First example we provided in the final rule on page 66945, we made a typographic error and listed the ICD-9-CM code for Dementia as “33.82” instead of “331.82.” In addition, we inadvertently omitted two 5-digit ICD-9-CM codes (294.10 and 294.11) that fall under 294.1. Finally, the website we provided for the Official Guidelines for Coding and Reporting was incorrect. We are making these corrections in section III.A.12 of this correction notice.

In the preamble of the final rule, we indicate in several places that IPFs must indicate on their claims the revenue code and procedure code for Electroconvulsive Therapy (ECT) (Rev code 901 and procedure code 90870) and the number of units of ECT, that is, the number of ECT treatments the patient received during the IPF stay. We explain that providing these data will ensure that facilities are appropriately reimbursed for the treatments they provided. We inadvertently referred to the Current Procedural Terminology (CPT) procedure code 90870 for ECT treatments rather than using the ICD-9-CM procedure code 94.27. Therefore, sections III.A.15.b and c of this correction notice replace the CPT procedure code 90870 with the ICD-9-CM procedure code.

In the preamble of the final rule on page 66951, we state that the ECT rate is adjusted by the facility characteristics, but we neglected to mention that the Cost of Living Adjustment (COLA) is one of these characteristics. The COLA is described elsewhere in the final rule on pages 66957 and 66958 and the correction of this omission does not represent a change in our policy. We are making this correction in section III.A.15.d of this correction notice.

In section III.A.17.b of this notice, we correct a typographical error in Table 8 on page 66953. Each of the values listed in the second column is correct, including the final total. However, we incorrectly reported the sum of the first four values (the subtotal) as 68.818 instead of 68.878. The incorrect value was not factored into any payment calculations, so no Medicare payments were affected by this error.

In sections III.A.19 through III.A.21 and in section III.B (under § 412.422) of this correction notice, we describe the teaching status adjustments. Beginning on page 66954 of the final rule, we presented the public comments and our responses to the proposed changes. However, we inadvertently omitted one comment that was timely submitted regarding our proposed teaching adjustment. The commenter asked if the IPF PPS would compensate for a school of nursing and a pastoral care teaching program. We indicate that we will pay for such programs, and that these payments are “pass-through” paid outside the PPS. We insert that comment and our response in section III.A.21. We also amend the preamble and the regulation text to correct the range of approved medical education programs that are treated as pass-through costs. The range listed in the final rule inadvertently did not cover all approved programs. This correction clarifies that the list of programs includes direct graduate medical education and nursing and allied health education activities. The correction of this list of programs is consistent with our policy as published in the final rule and does not reflect a change in policy.

We neglected to state in the final rule that we will be obtaining the total Medicare inpatient routine charges from the Provider Statistical & Reimbursement Reconciliation Reports (PS&R) associated with the applicable cost report for IPFs that are distinct part units. This is how we routinely obtain charges, but we neglected to include this statement in our final rule. The clarification is made in section III.A.26 of this correction notice.

Throughout the final rule, we explain that the IPF PPS is effective for cost reporting periods beginning on or after January 1, 2005. However, on page 66970 of the preamble to the final rule, we mistakenly stated that the methodology used for determining the Federal per diem base rate for cost reporting periods beginning on or after “January 5, 2005” includes certain factors. We correct this typographical error, changing January 5, to January 1, in section III.A.27 of this correction notice.

The Federal per diem base rate is $575.95, as indicated in the final rule, including in Table 8 on page 66982. However, on page 66972, in the Regulatory Impact Analysis, we mistakenly noted that the Federal per diem base rate is $572.00. In section III.A.28 of this notice, we correct the value of the Federal per diem base rate to be consistent with the rest of the final rule. This error had no payment implications as the incorrect number was not used in any calculations or payments.

In addition to correcting errors in the preamble, we also corrected several sections of the regulation text (see section III.B. of this correction notice). In discussing the Federal per diem base rate (§ 412.424), we incorrectly described the rate as “unadjusted” in § 412.424(c)(1). In order to be consistent with the actual policy, as described on pages 66931 through 66933 of the final rule, we changed “unadjusted” to “adjusted” to reflect that the Federal per diem base rate is the rate that has been adjusted for budget neutrality, behavioral offset, and outlier and stop-loss payments.

We inadvertently created a paragraph for high-cost adjustment cases that virtually duplicates § 412.424(d)(3)(i), the provision on outlier payments. Therefore, we deleted the paragraph titled “Adjustment for high-cost cases.”

In the final rule, we included § 412.424(d)(3), which sets forth our specific outliers policy for discharges occurring in cost reporting periods beginning on or after January 1, 2005. However, we meant to set forth our general outliers policy as reflected in the preamble of the final rule on page 66960, not the specific policy for the IPF PPS implementation period. Therefore, we corrected the section on outlier payments to describe our general outliers methodology that is not specific to the IPF PPS implementation period.

In § 412.426 of the regulation text, we inadvertently used incorrect dates for the cost reporting periods for the transition period from a blended PPS payment to a full PPS payment. Our policy is clear from the discussion in the preamble on pages 66964 through 66966 that the transition period dates correlate to the cost reporting year. However, in § 412.426, we inadvertently inserted the dates that reflect the IPF PPS update cycle instead of cost reporting years. This correction does not reflect a change in policy, rather, it conforms the regulation text to the actual policy. The errors did not affect payments in any way. In fact, no claims are being processed under the new bill processing system for the IPF PPS until its implementation on April 4, 2005.

In the final rule, on page 66952, we indicated that the wage indexes we are using are the pre-classified FY 2005 hospital wage indexes, as set forth in Addenda B1 and B2. In Addendum A, we incorrectly identified the wage index we are using as the “IPPS” wage index. Therefore, in this correction notice, we correct the reference to the wage index from “IPPS” to the pre-reclassified FY 2005 hospital wage index.

In Addendum B1, an incorrect wage index value was reported and an MSA designation was incorrectly reported. The errors, however, are only in the Addendum. The correct wage index value and MSA designation were reflected in PRICER at the time of the effective date of the final rule. The errors had no effect on payment, and the correction is being made to conform the wage index value and MSA designation to the actual policy that was in place at the time the final rule was effective.

In the preamble of the final rule, on pages 66959 and 66960, we set forth our policy of providing a facility-level adjustment for IPFs for both psychiatric hospitals and acute care hospitals with a distinct part psychiatric unit that maintain a qualifying emergency department (ED). We intended that the adjustment only be provided to hospitals with EDs that are staffed and equipped to furnish a comprehensive array of emergency services and that meet the definition of a “dedicated emergency department” as specified in § 489.24 and the definition of “provider-based status” (as corrected, from “provider-based entity” to “provider-based status” in section III.A.24.a, below) as specified in § 413.65. We defined a full-service ED in order to avoid providing an ED adjustment to an intake unit that is not comparable to a full-service ED with respect to the array of emergency services available. We provided that the ED adjustment will be incorporated into the variable per diem adjustment for the first day of each stay. That is, IPFs with qualifying EDs will receive a higher variable per diem adjustment for the first day of each stay than will other IPFs. (See page 66960 of the final rule.) However, in Addendum A, under the Variable Per Diem Adjustments chart, for Day 1 (on both lines), we erroneously indicated an adjustment factor for a facility with and without a “24/7” full-service ED. Our definition of full-service ED does not include any reference to “24/7.” Therefore, the reference may be confusing and could raise questions. In order to be consistent with our definition of a full-service ED, we are deleting the references to “24/7” in section III.C of this correction notice. In addition, although we believe that describing a full-service ED as providing a “comprehensive array of emergency services” was clear, we are further clarifying that full-service EDs furnish medical as well as psychiatric treatment.

In the final rule, on page 66937, we stated that our policy is that we will provide the Federal per diem base rate payment under the IPF PPS for claims with a principal diagnosis included in Chapter Five of the ICD-9-CM or the DSM-IV-TR. In the final rule, on pages 67014 through 67015, we provided a chart, Addendum C—Code First, which lists the ICD-9-CM Disease Code First instructions as of 2005 (effective October 1, 2004). These codes are the mental disorder codes 290 through 319, included in Chapter Five of ICD-9-CM. We inadvertently included code 320.7, Bacterial Meningitis. Because code 320.7 is not a mental disorder code, we are removing it in section III.C of this correction notice.

In addition to the preamble corrections described above, we made incorrect cross-references and other typographical errors in the final rule that we are correcting in this document.

In the final rule published on November 15, 2004 (69 FR 66922), make the following corrections:

1. On page 66922, in column 3 of the Table of Contents, lines 37 through 38, “Addendum A: Proposed Inpatient PPS Adjustments” is corrected to “Addendum A: Psychiatric Prospective Payment Rate and Adjustment Factors.”

2. On page 66923, in column 3, in line 16, remove the period after the word “example.”

3. On page 66924, in column 1, in the second full paragraph, line 1, remove the parenthesis before the word “We.”

4. On page 66932, in column 1, in line 19, the words “Federal per diem base rate” are corrected to “average cost per day”.

5. On page 66934, in column 3, in line 1, the word “conditions” is corrected to “condition categories.”

6. On page 66936,

a. In column 2, in the third full paragraph, in lines 6 and 7, the phrase “labor-related share (.72528) and adding the non-labor share (.27472)” is corrected to “labor-related share (0.72247) and adding the non-labor share (0.27753).”

b. In column 3, in the second paragraph, in line 6, add the words “all of” before the word “these.”

7. On page 66939,

a. In column 1, in line 1, the word “constructive” is corrected to “obstructive.”

b. In column 2, in the first full paragraph, in lines 9, 18, and 21, the word “malignant” is removed.

c. In column 2, in the first full paragraph, in lines 13 through 16, the sentence “As a result, we have added two ICD-9-CM codes, one for chemotherapy (V58.0) and one for radiation treatment (V58.1).” is corrected to “As a result, we have added ICD-9-CM procedure codes for radiation therapy (92.21 through 92.29) and for chemotherapy (99.25).”

d. In column 2, in the first full paragraph, in lines 22 through 26, the phrase “one of the two ICD-9-CM procedures codes (chemotherapy ((V58.0)) or radiation treatment ((V58.1)) to indicate the treatment modality the patient received.” Is corrected to “an ICD-9-CM procedure code for radiation therapy codes (92.21 through 92.29) or for chemotherapy (99.25).”

8. On page 66940,

a. In column 1, in Table 4, in row 8, and on page 66944, in column 1, in Table 5, in row 7, “Uncontrolled Type I Diabetes Mellitus, with or without complications” is corrected to “Uncontrolled Diabetes Mellitus”. We are also revising the chart on page 66984 in line 9 in the same manner.

b. In column 2, in Table 4, in row 11, “0411” is corrected to “04110”.

c. In columns 2 and 3, in Table 4, in row 11, “0100” is corrected to “01000”.

d. In column 2, in Table 4, in row 12, insert the code “29212”.

e. In column 3, in Table 4, in row 5, remove the figures “6363 and 6373” and add in their place the figures “63630, 63631, 63632, 63730, 63731, and 63732.”

f. In column 3, in Table 4, in row 7, “Treatment 140 through 2399 WITH either V580 or V581” is corrected to “Treatment 1400 through 2399 WITH either 92.21 through 92.29 or 99.25”.

g. In column 3, in Table 4, in row 15, remove the code “V461” and add in its place the codes “V4611 and V4612”.

9. On page 66942,

a. In column 2 of the chart, in row 25, the figure “0.72528” is corrected to “0.72247”.

b. In column 2 of the chart in row 26, the figure “0.27472” is corrected to “0.27753”.

c. In column 3 of the chart, in row 25, the figure “417.73” is corrected to “416.11”.

d. In column 3 of the chart in row 26, the figure “158.22” is corrected to “159.84”.

e. In column 1, in Step 1, in lines 5 and 6, the figures “(0.7743 × 417.73 = $323.45) are corrected to “(0.7743 × 416.11 = $322.19).”

f. In column 1, in Step 2, in lines 5 and 6, the figures “($323.45 + 158.22 = $481.67)” are corrected to “(322.19 + 159.84 = $482.03).”

g. In column 3, in Step 3, in line 5, the figures “($481.67 × 1.4181 = 683.06)” are corrected to “($482.03 × 1.4181 = $683.57).”

10. On page 66943, in column 1, in Step 3, the second numeric multiplier, 683.06, and the dollar amounts in each of the equations and in the Federal per diem payment amount, are revised as follows:

11. On page 66944,

a. In column 1, in Table 5, in row 3, “Tracheotomy” is corrected to “Tracheostomy”.

b. In column 2, in Table 5, in row 4, remove the figures “6363 and 6373” and add in their place the figures “63630, 63631, 63632, 63730, 63731, and 63732”.

c. In column 2, in Table 5, in row 6, “1400 through 2399 WITH either V58.0 OR V58.1” is corrected to “1400 through 2399 WITH either 92.21 through 92.29 or 99.25”.

d. In column 2, in Table 5, in row 11, insert the code “29212”.

e. In column 2, in Table 5, in row 14, remove the words “and V461” and insert “V4611 and V4612”.

12. On page 66945,

a. In column 1, in lines 10 through 11, “www.cdc.gov/nchs/data/ics9/icdguide.pdf” is corrected to “www.cdc.gov/nchs/data/icd9/icdguide.pdf.”

b. In column 3, in the first full paragraph, in line 1, the code “294.1” is corrected to “294.11”.

c. In column 3, in the first full paragraph, in line three, the words “With Behavioral Disturbance” are added before the words “is designated”.

d. In column 3, under the subheading for “294.1 Dementia in Conditions Classified Elsewhere,” in line 6, the code “(33.82)” is corrected to “(331.82)”.

e. In column 3, under the subheading for “294.1 Dementia in Conditions Classified Elsewhere” and before the paragraph that begins with “In accordance with the ICD-9-CM” insert the following subheading: “294.10 Dementia in Conditions Classified Elsewhere Without Behavioral Disturbances (not allowed as principal DX)” and 294.11 Dementia in Conditions Classified Elsewhere With Behavioral Disturbances (not allowed as principal DX)”.

f. In column 3, in the paragraph that begins with “In accordance with”, in line 8, remove the words “states “code first any underlying physical condition as:” and add in its place the words “is designated as “code first,” indicating that all 5 digit diagnosis codes that fall under 294.1 (codes 294.10 and 294.11) must follow the code first rule. According to the code first requirements,”.

In the same paragraph, in lines 55 through 64, remove the sentences “The submitted claim goes through the CMS processing system that will identify the primary diagnosis code as non-psychiatric and search the secondary codes for a psychiatric code to assign a DRG code for adjustment. The system will continue to search the secondary codes for those that are appropriate for comorbidity adjustment.”

13. On page 66946,

a. In column 1, in lines 7 through 9, the words “appropriate treatment V code V580 chemotherapy or V581 radiation.” is corrected to “appropriate procedure code from radiation therapy codes (92.21 through 92.29) or chemotherapy (99.25).”

b. In column 1, in line 10, the cross-reference “VI.B.5.C.” is corrected to “VI.B.6.c”.

c. In column 1, in line 16, the phrase “(code 90870)” is corrected to “(code 94.27).”

14. On page 66950, in column 2, in the third response to comment, in line 6, “say” is corrected to “stay”.

15. On page 66951,

a. In column 1, in the first response to comment, in line 17, the cross-reference “VI.B.5.b.” is corrected to “VI.C.4.d”.

b. In column 1, in the first comment under the heading c, in line 3, remove “(procedure code 90870)” and replace it with “(ICD-9-CM procedure code 94.27)”.

c. In column 2, in the third full paragraph, in line 8, remove “procedure code 90870” and replace it with “ICD-9-CM procedure code 94.27”.

d. In column 2, in the fifth full paragraph, in lines 11 through 13, the sentence “We will adjust the ECT rate for wage differences in the same manner that we adjust the per diem rate.” is corrected to “We will adjust the ECT rate by the area wage index and any applicable cost of living adjustment (COLA), in the same manner that we adjust the per diem rate.”

e. In column 3, in line 16, the word “ETC” is corrected to “ECT”.

16. On page 66952, in column 1, in line 1, the word “my” is corrected to “may”.

17. On page 66953,

a. In column 2, in the second paragraph of the response to comment, in line 10, remove the number “0” before the word “labor-related” and add in its place “The”.

b. In column 2, in the second paragraph of the response to comment, in line 14; in column 3, Table 8, row 6; and in column 3, line 5; the figure “68.818” is corrected to “68.878”.

18. On page 66954,

a. In column 2, in the first full paragraph, in line 9, the cross-reference “VIII” is corrected to “XII”.

b. In column 3, in the first full paragraph, in line 12, the cross-reference “V.C.3.” is corrected to “V.D.2”.

19. On page 66955, in column 1, line 24, the reference “§ 413.83” is corrected to “§ 413.85”.

20. On page 66956,

a. In column 3, in Step 2 of the response to comment under Step 2, in line 8, the figure “5.1” is corrected to “5.0”.

b. In column 3, in Step 2 of the response to comment under Step 2, in line 11, the figure “9.9” is corrected to “9.8”.

21. On page 66957, in column 1, before the sub-heading, “Other Facility-Level Adjustments,” the following comment and response are added:

Comment: One commenter asked if the IPF PPS would compensate for a school of nursing and a pastoral care teaching program.

Response: Under 42 CFR 413.85, hospitals that operate approved nursing or allied health education programs may receive Medicare payment on a reasonable cost basis for costs of these programs. The payment is a “pass-through” (that is, it is paid separately and distinctly from the IPF PPS; similarly, it was paid separately from the TEFRA target amounts). If a freestanding IPF operates an approved nursing or allied health program, we pay the IPF for Medicare's share of the reasonable costs of the program (for example, costs incurred for trainee stipends and compensation of teachers). If an IPPS hospital with a psychiatric unit has a nursing or allied health program, then we will pay the IPPS hospital for training costs incurred in the IPPS and the psychiatric unit parts of the hospital.

22. On page 66958, in column 3, in line 17, the number “8” is corrected to “9”.

23. On page 66959, in column 3, in line 7, the word “a” is corrected to “an”.

24. On page 66960,

a. In column 1, in line 18, the word “entity” is corrected to “status”.

b. In column 1, at the end of the first paragraph, add the following sentence: “We intend to pay the ED adjustment to IPFs with EDs that furnish medical as well as psychiatric emergency treatment.”

c. In column 1, in paragraph 4, in line 3, remove the word “of” before the word “the”.

d. In column 3, in the third full paragraph, in line 4, the figure “$7267.75” is corrected to “$7273.20”.

e. In column 3, in Step 1, in lines 3 and 4, the figure “0.72528” is corrected to “0.72247”, and the figure “$3201.03” is corrected to “$3188.63”.

f. In column 3, in Step 2, in lines 3 through 5, the figures “$5700 × 0.27472 (non-labor share) = $1565.90 $1565.90 + $3201.03 = $4766.93” are corrected to

g. In column 3, in Step 3, in line 3, the figure “$4766.96” is corrected to “$4770.55” and in line 4, the figure “$5577.31” is corrected to “$5581.54”.

25. On page 66961,

a. In column 1, in line 1, the figures “$5577.31 + $7267.75 = $12,845.06” are corrected to “$5581.54 + $7273.20 = $12,854.74”.

b. In column 1, in line 3, the figure “$12,845.06” is corrected to “$12,854.74”.

c. In column 1, in Step 1, in line 4, the figures “$12,845.06 = $3954.94” are corrected to “$12854.74 = $3945.26”.

d. In column 1, in Step 2, in line 3, the figures “$3594.94/10 = $395.49” are corrected to “$3945.26/10 = $394.53”.

e. In column 1, in Step 3, in lines 3 and 4, the figures “$395.49 × 0.80 = $316.40” and the figures “$316.40 × 9 days = $2847.60” are corrected to “$394.53 × 0.80 = $315.62” and “$315.62 × 9 days = $2840.58”, respectively.

f. In column 1, in Step 4, in line 3, the figures “395 × 0.60 = $237.30” are corrected to “$394.53 × 0.60 = $236.72”.

g. In column 1, in the paragraph after Step 4, in line 3, the figure “$3084.90” is corrected to “$3077.30” and in line 4, the figures “$2847.60 + $237.30” are corrected to “$2840.58 + $236.72”.

26. On page 66962, in column 3, in the second full paragraph, in line 4, remove the words “estimated by dividing Medicare routine costs on” and add in their place the words “obtained from the PS&R report associated with the applicable cost report. (If PS&R data are not available, estimate Medicare routine charges.” In line 11, add a close parenthesis after the word “charges” and in line 21, add the words “or M” before the words “in the third position.”

27. On page 66970, in column 3, in line 20, the date “January 5” is corrected to “January 1”.

28. On page 66972, in column 3, in the last paragraph, in line 7, the figure “$572” is corrected to “$575.95”.

1. On page 66982,

a. In column 2 of the Per Diem Rate chart, in rows 2 and 3, the figure “$417.73” is corrected to “$416.11” and the figure “$158.22” is corrected to “$159.84”.

b. In column 2 of the Facility Adjustments chart, in row 2, the words “Same as IPPS” are corrected to “See Addenda B1 and B2”.

c. In column 1 of the Variable Per Diem Adjustments chart, in rows 2 and 3, the figure “24/7” is removed.

1. On page 66989, in column 2 of the Table, in row 10, remove the words “Stanly, NC”.

2. On page 67012, in column 3 of the Table, in row 6, the figure “0.9468” is corrected to “0.9486”.

1. On page 67015, in columns 1 and 2, the last row is removed.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive the notice and comment procedures if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

The policies and payment methodology expressed in the November 15, 2004 final rule have previously been subjected to notice and comment procedures. This correction notice makes changes to conform the regulation text to the policies described in the preamble of the November 15, 2004 final rule. This correction notice also revises the preamble of the November 15, 2004 final rule to make clarifications, correct references, include an inadvertently omitted comment and response, and correct typographical errors. This correction notice is intended to ensure that the November 15, 2004 final rule accurately reflects the policies expressed in the final rule. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice.

We are also waiving the 30-day delay in effective date for this correction notice. We ordinarily provide a 30-day delay in the effective date of the provisions of a notice. Section 553(d) of the Administrative Procedure Act ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued. In addition, section 1871(e)(1)(B) of the Social Security Act, as amended by section 903(b) of Pub. L. 108-173, provides that substantive changes may only take effect prior to the 30-day effective date if the waiver of the 30-day period is necessary to comply with statutory requirements or the application of the 30-day delay is contrary to the public interest. We believe that it is in the public interest to ensure that the November 15, 2004 final rule accurately represents our prospective payment methodology and payment rates and that a delay in the effective date of these corrections would be contrary to the public interest.

We also find that it is in the public interest to apply the changes in this correction notice retroactively to January 1, 2005, the effective date of the November 15, 2004 final rule. Section 1871(e)(1)(A) of the Social Security Act, as amended by section 903(a) of Pub. L. 108-173, provides that a substantive change in regulations shall not be applied retroactively to items and services furnished before the effective date of the change, unless the Secretary finds that such retroactive application is necessary to comply with statutory requirements or failure to apply the change retroactively would be contrary to the public interest. In section III.A, III.B, and III.C of this correction notice, we have made substantive corrections to errors in the preamble, regulatory impact analysis, regulation text, and the Addenda of the November 15, 2004 final rule to ensure that the final rule accurately reflects our policies and payment methodologies. Although the November 15, 2004 final rule contained errors, we implemented correct policies and payment methodologies as of January 1, 2005. Therefore, not applying these changes retroactively to January 1, 2005 would have a disruptive effect on IPF PPS. As a result, we are applying the changes in this correction notice retroactively to January 1, 2005 because we believe it would be contrary to the public interest to do otherwise.

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

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

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

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

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

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

The changes BFEs are in accordance with 44 CFR 65.4.

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

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

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

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

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

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

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

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

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

The changes in BFEs are in accordance with 44 CFR 65.4.

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

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

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

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

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

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR part 67.

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

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

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

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

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

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

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

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR part 67.

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

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

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

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

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

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

This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

On November 1, 2000, the TREAD Act, Pub. L. 106-414, 114 Stat. 1800, was enacted. The Act mandated, among other things, that a manufacturer's remedy program for recalled tires “include a plan addressing how to limit, to the extent reasonably within the control of the manufacturer, the disposal of replaced tires in landfills, particularly through shredding, crumbling, recycling, recovery, and other alternative beneficial non-vehicular uses.” Section 7 TREAD Act, codified at, 49 U.S.C. 30120(d).

To implement Section 7 of the TREAD Act, on December 18, 2001, we published a Notice of Proposed Rulemaking that, among other things, would require manufacturer remedy programs to address how the manufacturer will limit the disposal of the recalled tires in landfills and instead channel them into positive categories of reuse. 66 FR 65165. RMA and the National Solid Waste Management Association (NSWMA) commented that certain States and local jurisdictions currently permit the use of scrap tires in landfills in certain applications like lining and engineering fill. Accordingly, RMA asked NHTSA in its final rule to distinguish between the use of tires as landfill construction materials, which RMA argued was an alternative beneficial non-vehicular use encouraged under the statute, and the discarding of tires into landfills.

On August 13, 2004, NHTSA published a final rule implementing Section 7. 69 FR 50077. In the preamble, we rejected the request by RMA and NSWMA that we affirmatively authorize the use of scrap tires in landfills in the final rule.

On September 27, 2004, RMA petitioned the agency to reconsider its views. It asserted that Section 7's and the final rule's language addressed disposal of tires in landfills, and that use of tires in landfill construction does not meet this definition. The association argued that this end-use application is considered in the scrap tire industry and market to be an “alternative beneficial non-vehicular use” specifically allowed and encouraged under the TREAD Act. In support of its petition, RMA provided a copy of its report, “U.S. Scrap Tire Markets, 2003 edition,” which noted that the use of shredded tires in landfill construction and operation was the fastest growing civil engineering application for scrapped tires.

RMA's petition presents the narrow question of whether Section 7 of the TREAD Act prohibits the use of recalled tires or parts thereof in landfill construction. We conclude that it does not. Section 7 employs the term “disposal,” and also refers to beneficial non-vehicular uses. In the context of Section 7, disposal does not include the use of tires or parts thereof in landfill construction.

This notice is limited to Section 7 of the TREAD Act. Our interpretation of Section 7 does not limit how any Federal, State, or local regulatory authorities address replaced tires under the laws and regulations they administer. Moreover, NHTSA does not authorize or endorse the use of tires or parts thereof in landfill construction or any other particular application for scrapped tires.

This notice does not alter the burdens and impacts discussed in the Regulatory Analyses in the preamble to the final rule. 69 FR 50083-84. To the extent that the Regulatory Analyses may be relevant, they are hereby incorporated by reference. The analysis of the Paperwork Reduction Act is updated as follows. On January 11, 2005, OMB approved the information collection necessitated by the final rule. The approval number associated with this information collection is OMB No. 2127-0004 (expiration date January 31, 2008).

Management of the fisheries for Pacific halibut (Hippoglossus stenolepis, hereafter halibut) in waters in and off Alaska is based on an international agreement between Canada and the United States. This agreement, titled the “Convention between United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea” (Convention), was signed in Ottawa, Canada, on March 2, 1953, and amended by the “Protocol Amending the Convention,” signed in Washington, D.C., on March 29, 1979. This Convention, administered by the International Pacific Halibut Commission (IPHC), is given effect in the United States by the Halibut Act. Generally, fishery management regulations governing the halibut fisheries are developed by the IPHC and recommended to the U.S. Secretary of State. When approved, these regulations are published by NMFS in the Federal Register as annual management measures. For 2004, the annual management measures were published February 27, 2004 (69 FR 9231).

The Halibut Act also provides for the North Pacific Fishery Management Council (Council) to develop halibut fishery regulations, including limited access regulations, in its geographic area of concern that would apply to nationals or vessels of the U.S. (Halibut Act, section 773(c)). Such an action by the Council is limited only to those regulations that are in addition to and not in conflict with IPHC regulations, and they must be approved and implemented by the U.S. Secretary of Commerce (Secretary). Any allocation of halibut fishing privileges must be fair and equitable and consistent with other applicable Federal law. This is the authority under which the Council acted in October 2000, to adopt a subsistence halibut policy. This policy was originally implemented by regulations published on April 15, 2003, at 68 FR 18145 (corrected May 15, 2003 at 68 FR 26230), and codified at 50 CFR 300 under subpart E.

A proposed rule to amend the subsistence halibut policy was published in the Federal Register on July 9, 2004 (69 FR 41447). Comments on the proposed rule were invited through August 9, 2004. Forty-one letters were received that included 43 separate comments, which are summarized and responded to below.

The principal elements of this amendment are described and explained in the preamble to the proposed rule and are not repeated here for brevity. In brief, these elements include: (1) changing the boundaries of the Anchorage/Matsu/Kenai non-subsistence area, (2) eliminating gear restrictions in Areas 4C, 4D, and 4E, (3) increasing gear and harvest restrictions in Area 2C, (d) allowing retention of legal sized subsistence halibut with CDQ halibut in Areas 4C, 4D, and 4E, (4) creating a Community Harvest Permit (CHP) system to mitigate increased gear and harvest restrictions in affected areas, (5) creating a Ceremonial and Educational Permit system to recognize customary and traditional tribal practices, and (6) including the Subsistence Halibut Program in the appeals process.

This final rule is substantively the same as the proposed rule published July 9, 2004 (69 FR 41447), except that certain technical changes have been made in response to comments received on the proposed rule. These changes are explained below under the Response to Comments and under Changes from the Proposed Rule.

NMFS received 41 letters of comment that contained 43 separate comments from various agencies, Alaska Native organizations, and individuals. These comments are grouped into three categories, including: (1) the content of the proposed rule (comments 1-19); (2) alternatives for proposed changes addressed by the Council in December 2004, but not part of this action (comments 20-27); and (3) the overall subsistence halibut policy, but also not part of this action (comments 28-43). The following summarizes and responds to these comments.

Comment 1: We oppose the increased gear restriction of 30 hooks per vessel in Area 2C.

Response: The Council recommended increased restrictions in Area 2C primarily to address localized depletion concerns due to increased subsistence halibut fishing effort. Area 2C has one of the highest population densities with proximity to easily accessible local fishing grounds, which allows for increased exploitation of the halibut resource in those areas. Based on public testimony, written comments, and analysis, the Council determined that increased gear restrictions were necessary in Area 2C to address localized depletion concerns.

The Council proposed superseding the 30-hook-per-person restriction with a 30-hook-per-vessel restriction in Area 2C. By reducing the number of hooks allowed to be fished from a single vessel, the Council effectively reduced the daily catch per vessel when two or more subsistence fishermen are on the vessel. The reduction in allowable gear also would reduce incidental catch of additional species that might also be subject to localized depletion, including rockfish and lingcod. NMFS agrees with this rationale for increasing the subsistence gear restrictions in Area 2C.

Comment 2: We support increased gear and harvest restrictions for all users. However, no distinction should be made in the regulations between Alaska Natives and non-Natives because the Subsistence Halibut Program was intended to help all rural and tribal residents feed their families.

Response: Halibut harvested while subsistence fishing are intended for the sustenance of the persons that are subsistence fishing, their families, and their communities in accordance with cultural traditions of Alaska Native and rural lifestyles. However, the Subsistence Halibut Program is designed to make distinctions among users based on State of Alaska (State) and Council findings of customary and traditional use of halibut by persons living in certain rural Alaska communities and by members of certain Alaska Native tribes. Hence, neither all rural Alaska communities nor all Alaska Native tribes are found to be eligible for subsistence halibut fishing privileges. The Halibut Act provides the authority to allocate or assign halibut fishing privileges among various fishermen.

This rule recognizes the unique customary and traditional practices of tribes by implementing Ceremonial and Educational Permits and a CHP program. These provisions were created to improve the original subsistence rule, which did not adequately meet the customary and traditional needs of Alaska Native tribes and are consistent with the authority granted by the Halibut Act.

Comment 3: Area 2C should be included in the CHP program.

The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP) that was prepared by the Gulf of Mexico Fishery Management Council (Council). The fisheries for coastal migratory pelagic resources are managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (Coastal Migratory Pelagics FMP) that was prepared jointly by the Council and the South Atlantic Fishery Management Council. These FMPs were approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The Council, in cooperation with the Gulf charter vessel/headboat industry, developed Amendment 14 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (Amendment 14) and Amendment 20 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 20) to address issues of increased fishing mortality and fishing effort in the for-hire (charter vessel/headboat) sector of the recreational fishery in the Gulf of Mexico. These two amendments proposed to establish a 3-year moratorium on the issuance of charter vessel or headboat permits for the reef fish fishery and coastal migratory pelagics fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico. The intended effect of these amendments was to cap the number of for-hire vessels operating in these fisheries while the Council evaluates the need for additional measures that may be necessary to rebuild these fishery resources and achieve optimum yield. The objective of capping the number of for-hire vessels was to be achieved via restrictive permit eligibility criteria based on permit history, participation as a historical captain, or vessel under construction parameters. NMFS approved Amendments 14 and 20 and promulgated the charter vessel/headboat permit moratorium regulations (67 FR 43558, June 28, 2002) to implement the amendments.

Soon after implementation of the charter vessel/headboat permit moratorium, NMFS and the Council determined that the amendments' implementing regulations contained an error relating to one of the eligibility criteria and, therefore, did not correctly reflect the action taken by the Council. As a result of the erroneous criterion, some persons entitled to receive a charter vessel/headboat permit would not have been able to obtain a permit. The Council, at its September and November 2002 meetings, provided further clarification of Council intent regarding the eligibility criteria that resulted in corrected Amendments 14 and 20. To maintain continuity in these fisheries until the error could be resolved through normal rulemaking, NMFS published an emergency rule (67 FR 77193, December 17, 2002) to extend the effective date of open access permits and to extend the date on which moratorium permits were to be required under the original rule. NMFS published a proposed rule (68 FR 11794, March 12, 2003) and a final rule (68 FR 26230, May 15, 2003) to implement the corrected Amendments 14 and 20. This final rule corrected the eligibility criterion; reopened the application process for obtaining a moratorium permit; again extended the effective dates of open access permits; again extended the applicable deadlines for applying for and obtaining moratorium permits; and extended the expiration date of the moratorium to account for the delay in implementation.

The intended effect of the moratorium was to cap the number of charter vessels and headboats operating in the Gulf reef fish and Gulf coastal migratory pelagic fisheries. Permit applicants were required to submit applications within a 90-day period. Since implementation of the moratorium, and particularly more recently, NMFS and the Council have become aware via numerous letters and phone calls that a substantial number of historical participants in these Gulf fisheries who meet the original moratorium permit eligibility requirements failed, for a variety of reasons, to submit a timely completed application and, therefore, never obtained the permit. As a result, the moratorium has had a more restrictive effect than was intended, and an estimated 34-810 qualifying historical participants may have suffered economic harm because they can no longer participate in these fisheries in the same manner as they did prior to the moratorium. The potential associated economic impact across all potentially affected vessels (34-810) is estimated to equate to approximately $2.6 million (34*$77,000) to $62 million (810*$77,000) in lost receipts and $1.3 million (34*$37,000) to $30 million (810*$37,000) in lost profits on an annual basis. These estimates would increase if some of the entities are headboats.

The Council, at its October 2004 meeting, reconsidered this issue and passed a motion requesting NMFS to implement an emergency rule to reopen the application period for the charter/headboat moratorium in the Gulf for 60 days based upon the economic harm to historical participants who were unintentionally excluded from the fishery, as long as the affected vessels demonstrate eligibility based upon the original moratorium permit criteria and some dependence on charter/headboat fishing in the Gulf. NMFS concurs with the Council's request and is issuing this emergency rule to implement the reopening of the permit moratorium application process.

Under this emergency rule, the application process for obtaining a charter vessel/headboat permit for Gulf reef fish or Gulf coastal migratory pelagic fish under the moratorium will be reopened for 120 days. Although the Council requested a 60-day reopening, NMFS believes that 120 days is appropriate to ensure adequate time for notifying potential applicants of the reopening and for applicants to compile necessary documentation and complete the application process while not placing an undue burden on the agency to continually accept new applications.

Eligibility for charter vessel/headboat permits under this reopening would be limited to applicants who: (1) meet one of the three original moratorium permit eligibility criteria; (2) were not issued an original charter vessel/headboat permit or letter of eligibility under the moratorium for which they were eligible; and (3) can document economic harm as a result of failure to obtain an original charter vessel/headboat permit under the moratorium. See § 622.4(r)(14)(i) in the accompanying codified text for a restatement of the original moratorium permit eligibility criteria.

Economic harm, for the purposes of this emergency rule, is based on the concept that a person who was eligible to receive a moratorium permit, but failed to do so, suffered an actual realized loss as a result of the inability to operate in these fisheries after the moratorium in the same manner as he/she did prior to the moratorium. For example, a person who owned a charter vessel or headboat with an open access permit for Gulf reef fish or coastal migratory pelagic fish and fished in the Gulf of Mexico during the period March 29, 2000, through November 12, 2003, prior to the moratorium, but failed to obtain a moratorium permit, would meet the economic harm standard. However, a historical captain who never obtained an open access permit for these fisheries and who failed to obtain a moratorium permit would not meet the standard because the opportunity to participate in the same manner as prior to the moratorium (i.e., as a captain) was not lost.

NMFS considered a variety of evidence that would indicate operation of a vessel in the Gulf. It was concluded that the most reliable forms would include, but not be limited to, proof of:

1. Issuance of an open access charter vessel/headboat permit for Gulf reef fish during the period March 29, 2000, through November 12, 2003; or

2. Issuance of an open access charter vessel/headboat permit for coastal migratory pelagic fish during the period March 29, 2000, through November 12, 2003, and:

a. A documented homeport in the Gulf for the permitted vessel during that period;

b. Appropriately dated logbooks, passenger manifests, or fuel receipts for the permitted vessel that clearly indicate operation within the Gulf; or

c. Appropriately dated receipts for dock rental for the permitted vessel from a Gulf-based marina.

An applicant who desires a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish must submit an application for such permit to the Regional Administrator, Southeast Region, NMFS (RA) postmarked or hand-delivered not later than August 1, 2005. Failure to apply by the above deadline will preclude permit issuance even when the applicant meets the eligibility criteria for such permit. Application forms are available from the RA. The information requested on the application form varies according to the eligibility criterion that the application is based upon as indicated in § 622.4(r)(14). An applicant who believes he/she meets the permit or application history criterion based on ownership of a vessel under a different name, for example, as may have occurred when ownership has changed from individual to corporate or vice versa, must document his/her continuity of ownership.

If a complete application is submitted in a timely manner and the applicable eligibility requirements specified in § 622.4(r)(14) are met, the RA will issue a charter vessel/headboat permit for Gulf coastal migratory pelagic fish and/or Gulf reef fish or a letter of eligibility for such fisheries, as appropriate, and mail it to the vessel owner or, in the case of a letter of eligibility, the applicant.

If an eligible applicant does not currently own a vessel to which the charter vessel/headboat moratorium permit could be applied, the RA will issue such applicant a letter of eligibility. The letter of eligibility is valid until redeemed for a moratorium permit or until the moratorium expires, whichever occurs first. The letter of eligibility may be redeemed through the RA for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish and/or Gulf reef fish, as appropriate, based on the applicant's eligibility. However, a letter of eligibility issued based on eligibility as a historical captain is valid only for a vessel of the same or lesser authorized passenger capacity as the vessel used to document earned income in § 622.4(r)(14)(i)(C)(2) and is valid only for the fisheries certified on the application under § 622.4(r)(14)(i)(C)(1). Further, such letter of eligibility may only be redeemed for a charter vessel/headboat permit with a historical captain endorsement, and such a permit is only valid on a vessel that the historical captain operates as a captain.

For the reasons stated above, this emergency rule meets NMFS policy guidelines for the use of emergency rules (62 FR 44421, August 21, 1997), because the emergency situation results from recently discovered circumstances; presents a serious management problem in the fishery; and the emergency rule realizes immediate benefits that outweigh the value of prior notice, opportunity for public comment, and deliberative consideration expected under the normal rulemaking process.

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this emergency rule is necessary to minimize adverse social and economic impacts (i.e., unintended exclusion of participation in these fisheries). The AA has also determined that this rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This emergency rule has been determined to be not significant for purposes of Executive Order 12866.

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B), as such procedures would be impracticable and contrary to the public interest. This is true because further delay in implementation will only prolong the adverse impacts to former participants currently excluded from participation in the fishery. Specifically, over 30 percent of qualified charter vessels and headboats have been excluded from continued legal participation in the Gulf reef fish and Gulf coastal migratory pelagic fisheries, which has resulted in a loss of all income for a substantial portion of the fishery, as well as a potential increase in the cost of fishing trips to the members of the public who seek to take such fishing trips. Although qualified applicants who did not obtain permits can purchase a permits from participants in the fishery, these permits have sold for approximately $10,000, which is a substantial cost. Because this is a substantive rule that relieves a restriction (i.e., the existing application deadline), as discussed above, it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1).

This emergency rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), namely the charter vessel/headboat permit application, submission of information on vessel construction, submission of information on historical captain eligibility, and submission of documentation of economic harm. These requirements have been approved by the Office of Management and Budget (OMB) under control number 0648-0520. Public reporting burdens for the charter vessel/headboat permit application, submission of information on vessel construction, submission of information on historical captain eligibility, and submission of documentation of economic harm, are estimated to average 20 minutes, 2 hours, 2 hours, and 30 minutes per response, respectively, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Public comment is sought regarding: whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimates; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collections of information, including through the use of automated collection techniques or other forms of information technology. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Regulations governing the yellowtail flounder landings limit within the Western and Eastern U.S./Canada Areas are found at 50 CFR 648.85(a)(3)(iv)(C). The regulations authorize vessels issued a valid limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area, under specific conditions. The TAC allocation for GB yellowtail flounder for the 2004 fishing year was specified at 6,000 mt in the final rule implementing Amendment 13 to the NE Multispecies Fishery Management Plan (FMP) (April 27, 2004, 69 FR 22906). Section 648.85(a)(3)(iv)(C)(3) authorizes the Regional Administrator to close the Eastern U.S./Canada Area to all limited access NE multispecies DAS vessels and prohibit all vessels from harvesting, possessing, or landing GB yellowtail flounder from the entire U.S./Canada Management Area when 100 percent of the GB yellowtail flounder TAC is projected to be harvested.

Based upon Vessel Monitoring System reports and other available information, the Regional Administrator has determined that 100 percent of the GB yellowtail flounder TAC of 6,000 mt was harvested as of March 25, 2005. Based on this information, the Eastern U.S./Canada Area is closed to limited access NE multispecies DAS vessels and all vessels are prohibited from harvesting, possessing, or landing GB yellowtail flounder from the entire U.S./Canada Management Area for the remainder of the fishing year, effective April 1, 2005.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.