The West Indian fruit fly regulations, contained in 7 CFR 301.98 through 301.98-10 (referred to below as the regulations), restrict the interstate movement of regulated articles from quarantined areas to prevent the spread of West Indian fruit fly ( Anastrepha obliqua ) to noninfested areas of the United States. Regulated articles are listed in § 301.98-2, and quarantined areas are listed in § 301.98-3(c). There are currently no areas in the continental United States quarantined for the West Indian fruit fly.

In an interim rule effective and published in the Federal Register on April 26, 2005 (70 FR 21325-21326, Docket No. 04-127-1), we amended the regulations by removing grapefruit, sweet lime, sour orange, and sweet orange from the list of regulated articles for West Indian fruit fly because the available information indicates that these fruit do not present a risk of spreading West Indian fruit fly.

Comments on the interim rule were required to be received on or before June 27, 2005. We received one comment by that date. The commenter—a State government official—raised several issues, which are addressed below.

First, the commenter stated that the literature and record review used as the basis of the interim rule not only provides weak support for removing Citrus spp. as a host of West Indian fruit fly, but actually substantiates Citrus spp. as an occasional host. We disagree with this comment. The literature review examined nine papers that were based on original research and that supported Citrus spp. as a host to West Indian fruit fly. A detailed evaluation of these papers' quality led APHIS to conclude that the evidence supported only a low likelihood that Citrus spp. are a host. After conducting this review and examining the multi-year interception data included in the report, we do not believe that the low likelihood of Citrus spp. being a host is sufficient to support the continued listing of these fruits as regulated articles.

Second, the commenter stated that without formal regulations for West Indian fruit fly and with the lack of a sensitive and effective detection trap, a serious threat is posed for too many commercial and dooryard hosts in Florida, including mango, guava, carambola, avocado, pear, peach, and other tropical fruits. We are making no changes based on this comment. The interim rule did not remove all of the regulations for West Indian fruit fly. Instead, the interim rule simply removed four articles—grapefruit, sweet lime, sour orange, and sweet orange—from the list of regulated articles; the remaining provisions of the regulations will remain intact. In addition, we will continue using our current detection system, which has proven to be an effective method for determining if a population of fruit flies exists.

Third, the commenter stated that the interception records cited do not provide reliable data either due to inadequate identification of specimens or a low interception rate of hosts. The commenter stated that over 3,000 Anastrepha spp. larvae per year were intercepted over the period listed in Table 1 of the literature review, which identifies a high rate of risk. We are unclear on the source and context of the number cited by the commenter. Table 1 in the literature review presented interception data from the Greater and Lesser Antilles. Of 17,258 interceptions, only 8 interceptions were reported as occurring in Citrus spp. Upon a closer review of these eight reports, most were deemed invalid as proof of infestation—three were reported as on fruit (not in fruit), two were listed as adults, one was listed as on leaves, and one was from citrus obtained in Haiti and intended for use as on-board food on an airline flight that departed from Haiti. The final interception could have been Anastrepha suspensa, as this pest is known to use Citrus spp. as a host and Anastrepha obliqua larvae can not be reliably differentiated from Anastrepha suspensa larvae using keys. Given this analysis, the evidence supported a conclusion of low likelihood of the host status of Citrus spp.

Finally, the commenter called for additional data and scientific justification for the change in the regulations and suggested that an interactive risk assessment be conducted by APHIS in concert with certain concerned and affected States before further action is taken. We are making no changes based on this comment. We continue to believe that the information contained in the literature review provides a sufficient basis for our determination that there is only a low likelihood that Citrus spp. would be a host to West Indian fruit fly. If more research regarding this topic is published, we may reevaluate the host status of Citrus spp. with respect to West Indian fruit fly.

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

The Mexican fruit fly ( Anastrepha ludens ) is a destructive pest of citrus and many other types of fruit. The short life cycle of the Mexican fruit fly allows rapid development of serious outbreaks that can cause severe economic losses in commercial citrus-producing areas.

The Mexican fruit fly regulations, contained in 7 CFR 301.64 through 301.64-10 (referred to below as the regulations), were established to prevent the spread of the Mexican fruit fly to noninfested areas of the United States. The regulations impose restrictions on the interstate movement of regulated articles from quarantined areas.

In an interim rule effective January 15, 2003, and published in the Federal Register on January 21, 2003 (68 FR 2679-2680, Docket No. 02-129-1), we amended the regulations in § 301.64-3 by designating a portion of San Diego County, CA, as a quarantined area for Mexican fruit fly. That action was necessary to prevent the spread of the Mexican fruit fly to noninfested areas of the United States.

We solicited comments concerning the interim rule for 60 days ending March 24, 2003. We received five comments by that date. They were from fruit and vegetable producers and an individual.

One commenter supported the interim rule. The remaining commenters raised questions about the location of the boundary lines for the quarantined area, arguing that the boundary lines were beyond what was necessary for quarantine purposes and requesting that the lines be reexamined and redrawn.

The process for establishing quarantine boundaries is based on our experience and scientific information concerning the Mexican fruit fly's life cycle and its ability to spread, both naturally and by artificial means. For operational and quarantine enforcement reasons, boundaries often follow easily identifiable markers, such as major roads or other county and city lines. We remain sensitive to the needs of producers and make every effort to minimize quarantined areas. Currently, Mexican fruit fly has been eradicated from the designated part of San Diego County, CA, and there are no longer any areas in California quarantined for the Mexican fruit fly.

In a second interim rule effective February 20, 2003, and published in the Federal Register on February 26, 2003 (68 FR 8817-8820, Docket No. 02-129-2), we amended the regulations in § 301.64-10 to provide for the use of irradiation as a treatment for fruits that are regulated articles. That change provided an additional option for qualifying those regulated articles for interstate movement from areas quarantined because of Mexican fruit fly.

We solicited comments concerning the interim rule for 60 days ending April 28, 2003. We received three comments by that date. They were from State and Federal government representatives and an individual.

One commenter supported the interim rule, and suggested that we should also consider allowing the use of irradiation as a treatment option for all fruit imported into the United States from Mexico to mitigate the risk posed by Mexican fruit fly.

In the regulations governing the importation of fruits and vegetables (Subpart—Fruits and Vegetables, 7 CFR 319.56 through 319.56-6), § 319.56-2(k) provides that any fruit or vegetable that is required to be treated or subjected to other growing or inspection requirements to control one or more of the 11 species of fruit flies and one species of seed weevil listed in 7 CFR 305.31(a) as a condition of entry into the United States may instead be treated by irradiation in accordance with part 305. The Mexican fruit fly is among the 11 species of fruit flies listed in § 305.31(a), so irradiation is already an option for any fruits or vegetables imported from Mexico that are required to be treated or subjected to other measures to control Mexican fruit fly.

Another commenter stated that the minimum absorbed treatment dose should be reduced from 150 gray to 70 gray, since some fruits may suffer damage as a result of higher dosimetry.

In a proposed rule published in the Federal Register on June 10, 2005 (70 FR 33857-33873, Docket No. 03-077-1), we proposed, among other things, to reduce the approved irradiation dose for Mexican fruit fly to 70 gray, consistent with the commenter's recommendation. We are currently considering the comments received on that proposed rule and will finalize the 70 gray dose and the other proposed provisions of that document if our review of the comments leads us to conclude such action is appropriate.

The same commenter also pointed out that the addresses we provided in § 301.64-10 for the submission of cartons for approval and for the submission of requests for approval of an irradiation treatment facility and treatment protocol were out of date.

Those addresses were updated in another final rule that amended § 310.64-10, so the changes suggested by the commenter are no longer necessary.

Another commenter pointed out that, as written, the packaging and labeling requirements found in § 301.64-10(g)(3) would apply only to fruit treated within a quarantined area. The commenter stated that information relative to treatment verification and product origin must be provided regardless of where the treatment was conducted.

The packaging requirements of § 301.64-10(g)(3) are intended to prevent fruit flies from entering the cartons and ovipositing on the fruit after it has been treated and is being moved out of a treatment facility in a quarantined area. That same risk of oviposition would not be present if the treatment facility was located outside a quarantined area, i.e. , in an area where Mexican fruit fly was not present; in such instances, an inspector would ensure, through a compliance agreement, that safeguards were applied to prevent the escape of fruit flies from the fruit as it was being moved from the quarantined area into the non-quarantined area for treatment. With respect to the labeling requirements of paragraph (g)(3) as they apply to fruit treated outside a quarantined area, the same compliance agreement would provide that packaging must be labeled with treatment lot numbers, packing and treatment facility identification and location, and dates of packing and treatment.

In a third interim rule effective March 4, 2003, and published in the Federal Register on March 10, 2003 (68 FR 11311-11313, Docket No. 02-129-3), we amended the regulations in § 301.64-3 by designating an additional portion of San Diego County, CA, as a quarantined area for Mexican fruit fly. This action was necessary to prevent the spread of the Mexican fruit fly to noninfested areas of the United States.

We solicited comments concerning the interim rule for 60 days ending May 9, 2003. We received one comment by that date, from an individual. The commenter stated that the interim rule attempted to bypass the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) based on its designation of the spread of the Mexican fruit fly as an emergency situation and failed to take into consideration potentially more efficient methods of preventing the spread of the fruit fly ( e.g. , pesticides).

In this case, the requirements of the Regulatory Flexibility Act were not bypassed, but simply deferred, consistent with the provisions of that act, due to the need to implement the quarantine and movement restrictions on an emergency basis in order to prevent the spread of the Mexican fruit fly into noninfested areas of the United States. With respect to our consideration of alternatives such as pesticides, we note that the action taken in the interim rule was merely one aspect of a multifaceted State/Federal response to the Mexican fruit fly outbreak in San Diego County, CA. In addition to the designation of the quarantined area and the resulting restrictions on the movement of regulated articles, a variety of inspections, trapping and delimiting surveys, premises treatments, and other activities were undertaken to prevent Mexican fruit fly from spreading to noninfested areas and to ensure that the pest was eradicated from the quarantined area.

Noting that the regulations in §§ 301.64 and 301.64-5 provide that any properly identified inspector is authorized to stop and inspect persons and means of conveyance, and to seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of regulated articles, the commenter stated that there was “a great risk of abuse of that authority.” Because of that perceived risk, the commenter stated that there should be checks and balances on the authority of inspectors.

Given that the action taken in the March 2003 interim rule was limited to amending § 301.64-3 to designate of a portion of San Diego County, CA, as a quarantined area, we believe that this comment falls outside the scope of that rulemaking.

In a fourth interim rule effective October 22, 2003, and published in the Federal Register on October 28, 2003 (68 FR 61323-61324, Docket No. 02-129-4), we removed San Diego County, CA, from the list of quarantined areas and thus removed restrictions on the interstate movement of regulated articles from that area. That action was based on our determination that the Mexican fruit fly had been eradicated from San Diego County, CA, and was necessary to relieve restrictions that were no longer needed to prevent the spread of the Mexican fruit fly into noninfested areas of the United States.

We solicited comments concerning the interim rule for 60 days ending December 29, 2003. We did not receive any comments.

Therefore, for the reasons given in the interim rules and in this document, we are adopting the February 2003 and October 2003 interim rules as a final rule without change.

This action also affirms the information contained in the interim rules concerning Executive Orders 12866, 12372, and 12988 and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This rule follows a series of interim rules that amended the Mexican fruit fly regulations by designating portions of San Diego County, CA, as quarantined areas, then subsequently removing those portions of the county from the list of quarantined areas. In another interim rule in that series, we provided for the use of irradiation as a treatment for fruits listed as regulated articles. In the October 2003 interim rule in which we removed those portions of San Diego County, CA, from the list of quarantined areas, we addressed the economic effects of the interim rules that dealt with quarantined areas. The following analysis examines the economic effects associated with the February 2003 interim rule adding irradiation as a treatment for regulated articles.

The small entities most likely to have been affected by our addition of irradiation as an approved treatment for fruits listed as regulated articles would be those entities that moved regulated articles interstate from the quarantined area. We expect that those entities would have benefited from the availability of an additional treatment alternative, especially in any case where irradiation treatment may have been less time-consuming or less expensive than the other treatment options available (cold treatment, methyl bromide fumigation, and high-temperature forced air).

We do not know how many producers or shippers availed themselves of the irradiation treatment option, but we have no evidence to suggest that the cost or time differential between irradiation and the other available treatment options is substantial enough to have had any significant economic effects for any entities, large or small.

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.

EDA published an interim final rule in the Federal Register (70 FR 47002) on August 11, 2005. The interim final rule reflects the amendments made to EDA's authorizing statute, the Public Works and Economic Development Act of 1965 (42 U.S.C. 3121 et seq. ) (“PWEDA”), by the Economic Development Reauthorization Act of 2004 (Pub. L. 108-373). In addition to tracking the statutory amendments to PWEDA, the interim final rule reflects EDA's current practices and policies in administering its economic development programs that have evolved since the promulgation of EDA's current regulations (codified at 13 CFR Chapter III). The interim final rule also provides for a public comment period.

This final rule delays the effective date of the provisions specified above relating to EDA's Planning Investments, Investment Rates for Planning Investments, and District Organizations from October 1, 2005 until November 14, 2005. The effective date of all other provisions of the interim final rule remains October 1, 2005. This final rule also extends the deadline for submitting public comments on the entire interim final rule from 5 p.m. (e.s.t.) on October 11, 2005 until 5 p.m. (e.s.t.) on November 14, 2005. The procedure for filing public comments is set forth in the interim final rule and is not changed by this final rule. The delay in effective date and the extension of the public comment period are necessary to provide additional time for the submission of public comments and to allow for EDA's additional consideration of matters pertaining to the effective implementation of the interim final rule.

Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

It has been determined that this final rule is not significant for purposes of Executive Order 12866.

This final rule is not “major” under the Congressional Review Act (5 U.S.C. 801 et seq. ).

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that 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.” It has been determined that this final rule does not contain policies that have federalism implications.

On September 6, 2005, the FAA issued AD 2005-19-06, amendment 39-14271 (70 FR 54474, September 15, 2005), for certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes; equipped with Pratt & Whitney JT9D-3 and -7 series engines, except JT9D-70 engines. The AD requires repetitive detailed and ultrasonic inspections of the thrust links of the rear engine mounts for any crack or fracture and corrective actions if necessary.

As published, the requirements of paragraph (h)(1) of the AD inadvertently reference doing the repetitive replacements “* * * at the applicable compliance time specified in paragraph (h)(1)(i) or (h)(2)(ii) of this AD.” However, there is no paragraph (h)(2)(ii) in the AD. We have removed reference to paragraph (h)(2)(ii) and replaced it with the correct reference to paragraph (h)(1)(ii).

No other part of the regulatory information has been changed; therefore, the final rule is not republished in the Federal Register .

The effective date of this AD remains September 30, 2005.

On September 6, 2005, the FAA issued AD 2005-19-04, amendment 39-14269 (70 FR 54251, September 14, 2005), for certain Airbus Model A340-200 and -300 series airplanes. The AD requires revising the airplane flight manual to incorporate new procedures for the flightcrew to follow to correct miscalculation of the takeoff and accelerating or stopping distance of the airplane during a ferry flight under certain conditions.

As published, that AD specifies an incorrect Docket No. ( i.e. , FAA-2005-20405) throughout preamble and the regulatory text of the AD. The correct Docket No. is FAA-2005-22405.

No other part of the regulatory information has been changed; therefore, the final rule is not republished in the Federal Register .

The effective date of this AD remains September 29, 2005.

On September 6, 2005, the FAA issued AD 2005-19-05, amendment 39-14270 (70 FR 54249, September 14, 2005), for certain Aerospatiale Model ATR42-500 airplanes. This AD requires inspecting for correct installation of the fastener that attaches the ground braids on the elevator, modifying the forward bonded assembly of the elevator control rod, and corrective action if necessary.

As published, that AD specifies an incorrect Docket No. ( i.e. , FAA-2005-20406) throughout preamble and the regulatory text of the AD. The correct Docket No. is FAA-2005-22406.

No other part of the regulatory information has been changed; therefore, the final rule is not republished in the Federal Register .

The effective date of this AD remains September 29, 2005.

On September 6, 2005, the FAA issued AD 2005-19-03, amendment 39-14268 (70 FR 53915, September 13, 2005), for all BAe Systems (Operations) Limited Model ATP airplanes. The AD requires revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate life limits for certain items and new inspections to detect fatigue cracking in certain structures and of certain significant structural items, and to revise life limits for certain equipment and various components.

As published, that AD specifies an incorrect Docket No. (i.e., FAA-2005-20404) throughout preamble and the regulatory text of the AD. The correct Docket No. is FAA-2005-22404.

No other part of the regulatory information has been changed; therefore, the final rule is not republished in the Federal Register .

The effective date of this AD remains September 28, 2005.

The National Marine Sanctuary Program (NMSP) manages a system of thirteen National Marine Sanctuaries (NMSs or Sanctuaries) and the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve that protect special, nationally significant areas of the marine environment under the authority of the National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ). Sanctuaries protect a variety of marine areas including coral reefs, mangrove forests, and seagrass beds in the Florida Keys National Marine Sanctuary; deep-sea canyons, kelp beds, and hardbottom habitats in the Monterey Bay National Marine Sanctuary; and historic shipwrecks in the Thunder Bay National Marine Sanctuary and Underwater Preserve.

In the last few years the NMSP has experienced an increased number of permit applications to establish artificial reefs inside NMS boundaries, particularly in the Florida Keys National Marine Sanctuary. Because NMSP regulations generally prohibit placing structures on sanctuary submerged lands, any individual who wishes to establish an artificial reef inside a NMS must first get approval from the NMSP through the onsite sanctuary manager.

To ensure that applications to establish artificial reefs in sanctuaries are reviewed consistently and in a manner that adheres to the NMSA and NMSP regulations (15 CFR Part 922), the NMSP developed permitting guidelines specific for such applications. The guidelines build on lessons learned from past experience permitting artificial reefs within sanctuaries and apply knowledge from other sources of information. They are intended to guide decision makers as they review proposals for artificial reefs in sanctuaries. They clarify how decision making criteria contained in NMSP regulations will be applied specifically to permit applications for artificial reef development.

On July 18, 2003, NOAA published a notice of availability of the NMSP's Artificial Reef Policy and Permitting Guidelines in the Federal Register (68 FR 42690, Jul. 18, 2003). The policy and permitting guidelines have been implemented on an interim-final basis since that date. NOAA also requested comments on the policy and permitting guidelines through September 16, 2003. The following are NOAA's responses to the comments received.

Comment 1. Many commenters felt that the policy prohibited or was overly restrictive of artificial reef development within national marine sanctuaries.

Response: NOAA disagrees. The NMSP's regulations prohibit artificial reef development in NMSs by prohibiting the placement of structures on the submerged lands. This policy creates a framework to allow artificial reefs under specific conditions ( i.e. , when a project is expected to benefit NMS management and would not have a detrimental effect on NMS resources). The policy applies higher standards of resource protection to artificial reef projects within NMSs than would apply to projects outside NMSs or other protected areas. More protective requirements are appropriate given the nature and purpose of the NMSs.

Comment 2. Several commenters suggested expanding the policy or definition of artificial reefs to address specific issues, such as coral reef restoration and reef balls.

Response: The primary purpose of the policy is to guide decision making related to placement of artificial reefs within the Sanctuary System. The policy is intended to apply to all types of artificial reef projects, and not to direct the policy to a specific type of artificial reef. The policy appropriately and specifically excludes natural reef restoration projects from application of this policy because such projects are addressed by the NMSP in a much different manner.

Comment 3. A few commenters felt that artificial reefs should not be placed in sanctuaries under any circumstances.

Response: See response to comment number 1.

Comment 4. A few commenters stated that all or part of the policy conflicted with the National Fishing Enhancement Act of 1984 (NFEA).

Response: NOAA disagrees. While the NFEA encourages artificial reef development it does not, under any circumstance, require their use. Any regulatory or statutory requirement that prohibits or imposes more restrictive requirements on artificial reef development is not in direct conflict with that statute. The NMSP's artificial reef policy is written pursuant to the NMSA and the regulations promulgated thereunder. Because the primary objective of the NMSA is resource protection, it is entirely appropriate that the NMSP's policy be more protective than the policy applicable to non-sanctuary waters under the NFEA.

Comment 5. Some commenters felt that the NMSP's policy imposes more burdens on an applicant than the requirements of the National Artificial Reef Plan (NARP).

Response: NOAA agrees. The policy does exceed the requirements of the NARP in several respects including the types of monitoring and insurance required. As discussed in the response to comment number 4, these more stringent requirements are consistent with the purposes and policies of the NMSA and are appropriate for NMSs.

Comment 6. One commenter suggested that the section on the definition of an artificial reef should refer to applying the policy to oil rigs and existing structures that may end up being used as artificial reefs in the future.

Response: NOAA does not feel abandoning existing oil rigs would qualify as artificia1 reef development within a NMS as it is defined in the NMSP policy, because the policy is not meant to address the abandonment of existing structures inside NMSs. If presented with an application to abandon an oil rig inside a NMS, the NMSP would use certain aspects of its artificial reef policy during its review of such a proposal, if appropriate.

Comment 7. Several commenters provided information about artificial reefs they felt should be included or in some manner referenced in the policy.

Response: NOAA appreciates the additional information provided by some commenters. However, none of it necessitated changes in the procedures for reviewing permit applications for artificial reef development in NMSs.

Comment 8. One commenter asked if a complete proposal submitted to the NMSP would have to include a U.S. Army Corps of Engineers (ACOE) or relevant state permits. The commenter also asked if the NMSP would review and approve a proposal before those permits are obtained.

Response: NOAA will begin reviewing permit applications to establish artificial reefs inside NMSs prior to the issuance of an ACOE or required state permit. During this review period, the NMSP will confer with all tribal, local, State, and Federal agencies with jurisdiction. The NMSP will not take final action on any such permit until it understands the positions of all relevant agencies. Nothing in the policy or in the NMSP regulations, however, precludes the NMSP from issuing its permit prior to the permittee receiving other required permits.

Comment 9. One commenter requested that the diagram illustrating the review process indicate that public review of the application would occur before a decision would be made.

Response: The public review process is sufficiently represented in the National Environmental Policy act process on the diagram. As stated in section 2.4.1 of the policy (page 15), the NMSP will prepare a draft environmental assessment or impact statement and will release the document for public comment prior to making a final decision on the application.

Comment 10. One commenter requested an independent assessment, inspection, or certification of material proposed to be used in artificial reef development to ensure contaminant risk has been adequately researched and minimized.

Response: NOAA agrees that these types of assessments are appropriate, particularly for artificial reef projects using an obsolete vessel as the material. The Environmental Protection Agency and/or United States Coast Guard inspect and certify vessels proposed to be deployed as artificial reefs. However, such an assessment might not be necessary for artificial reef projects using other types of material. Therefore, NOAA does not feel independent inspection will be necessary in all cases.

Comment 11. One commenter wanted an independent assessment of the deployment and stabilization plan for each permit.

Response: The NMS manager or superintendent and other NMSP staff will review every permit application (including the deployment and stabilization plans) for artificial reef development within NMS boundaries. The NMSP's assessment is independent of the permit applicant's. In some cases NMSP may obtain outside expertise to assist in its assessment.

Comment 12. One commenter felt that the NMSP should not put itself in a sponsorship or permittee role for any artificial reef project.

Response: As a permitting agency, the NMSP will not sponsor any artificial reef project for which it is processing a permit application or expects to receive a permit application in the future. The NMSP will also not co-apply for any such permit.

Comment 13. One commenter wanted clarification as to why NOAA would consider an applicant eligible for a permit and allow him/her to go through the effort of submitting a proposal, knowing that NOAA was not going to approve the request?

Response: The NMSP's permitting process does not prevent an applicant from submitting an application to conduct activities within sanctuaries. After receiving and reviewing an application, the NMSP will decide whether or not to approve the activity. Based on the nature, scope, and complexity of the proposal, the review process and need for additional information may vary. In some cases, it may be possible for the NMSP to dismiss an application without asking for additional information from the applicant. In others, the NMSP may need this additional information to make a final determination.

Comment 14. One commenter stated that NMSP should require copies of data and reports, and that the projects should make management recommendations with justifications.

Response: The NMSP has monitoring and reporting components described within the policy. The NMSP will assess results and make adjustments to management practices when warranted by information obtained from the monitoring reports.

Comment 15. One commenter felt that the policy should allow for involvement of all stakeholders and that it should not have special provisions for Native American tribes.

Response: Special provisions related to Native American Tribes are warranted in circumstances such as when tribal treaty rights or NMSP regulations provide involvement of tribes in permit decisionmaking. In general this only applies to the Olympic Coast National Marine Sanctuary but will be considered on a case-by-case basis for other NMSs.

Comment 16. One commenter was concerned that the section in the policy on “Authorizations” was the weakest. They felt the process described in this section was a means to circumvent requirements of NMSA and that proposals should still be held to the same regulations, including enhancing resources.

Response: The NMSP reviews artificial reef projects with the same level of scrutiny, whether they are being considered under authorizations or other forms of approval.

Comment 17. One commenter did not agree with the five-year duration for special use permits.

Response: The five-year duration for special use permits is mandated by the NMSA. When a special use permit is issued, the permit cannot be issued for a period longer than five years, but may be renewed.

Comment 18. One commenter wanted clarification on what type of monitoring NOAA was referring to in the section of the policy that describes evaluating the effects of a project.

Response: NOAA was referring to all forms of monitoring required under a permit and described in section 2.2.2 (page 10) of the policy.

Comment 19. One commenter questioned why NOAA was requiring the permittee to prove that there are funds available to remove the reef if something goes wrong.

Response: NOAA was primarily referring to problems encountered during installation. In the event of a problem, NOAA must be certain the applicant has funds to ensure there will be no damage to NMS resources, which may include removal of the artificial reef. Additionally, should pieces separate from the main structure of the artificial reef, NOAA may require the permittee to remove them from the Sanctuary.

Comment 20. One commenter wanted to know if bonds would be retroactive to cover materials already in the Florida Keys NMS (FKNMS).

Response: Bonds will not be required retroactively for preexisting materials within the Sanctuary.

Comment 21. One commenter wanted to know how long the NMSP considered to be the life of a project.

Response: The duration of a project is as long as the artificial reef is within the Sanctuary.

Comment 22. Some commenters felt that it is difficult to obtain a bond for monitoring.

Response: A bond is not necessarily the only way to demonstrate that an applicant has financial resources available. When discussing the issue of obtaining a bond for monitoring purposes, the policy is referring to the permittee providing some form of financial security. If a bond is not a practical form of financial security, the permittee may find another method. The policy has been revised to better express this point.

Comment 23. One commenter expressed concerns about an artificial reef releasing toxic materials or other pollutants into the water after it is placed on the bottom. The commenter suggested that the policy should address the issue more directly.

Response: The NMSP agrees artificial reefs placed inside NMSs must not release into the water pollutants of any kind that have the potential to adversely affect sanctuary resources. This issue is discussed in Appendix B to the guidelines as an issue that the NMSP should consider when reviewing applications to establish artificial reefs. Furthermore, potential pollutants must be disclosed in the permit application as specified in Appendix C. The NMSP will consult with the Environmental Protection Agency to consider this information and to assess the impacts it would have on sanctuary resources.

Comment 24: Several comments were received on how NOAA will evaluate the effects of removal of an artificial reef.

Response: If an artificial reef is not permanent and NOAA requires removal as part of the project, the effects of that removal process will be evaluated before a permit is issued. NOAA may also conduct a supplemental analysis immediately prior to removal of the artificial reef to consider whether removal is inappropriate.

Comment 25. One commenter felt that Executive Order 13089 on Coral Reef Protection should have been included in the NEPA Documentation and Interagency Consultation section of the policy.

Response: The policy applies to all NMSs (most of which do not have coral reef resources). Therefore, Executive Order 13089 will not apply to every artificial reef proposal for every NMS. When the requirements of Executive Order 13089 apply to a proposed artificial reef development project, the NMSP will take the required steps to ensure the Executive Order is followed.

Comment 26. One commenter thought that the NMSP should provide an analysis of each alternative that the applicant is allowed to pursue under the National Environmental Policy Act (NEPA).

Response: As indicated in Appendix C to the policy, a permit application to establish an artificial reef in a NMS must include all information necessary for the NMSP to prepare the appropriate NEPA documentation. In determining the completeness of the permit application, the NMSP will ensure the applicant has submitted sufficient information to fully analyze the full range of reasonable alternatives as required by NEPA and its implementing regulations.

Comment 27. One commenter pointed out that the NMSP does not have to prepare and release a draft NEPA analysis document for public comment for artificial reef projects that do not require the preparation of an environmental impact statement.

Response: Section 5.02(b)(1) of NOAA Administrative Order 216-6 encourages NOAA programs to release a draft environmental assessment to the public to the extent possible. NOAA realizes that this action is not required under NEPA, but has determined that it is appropriate in cases involving the establishment of artificial reefs in NMSs.

Comment 28. One commenter wanted the policy to recognize that artificial reefs may be beneficial for Essential Fish Habitat (EFH).

Response: It is not the role of the NMSP to artificially create new EFH (as defined in the Magnuson-Stevens Fishery Conservation and Management Act). The NMSP, in consultation with NOAA Fisheries, will consider the extent that any proposed artificial reef may adversely affect EFH that naturally occurs in the vicinity of the project.

Comment 29. One commenter suggested that biological monitoring be specifically included in the monitoring requirements.

Response: In general, some form of biological monitoring will always be required although the exact monitoring requirements ( e.g. , parameters to be studied, frequency of data collection) will vary from permit to permit.

Comment 30. One commenter felt that the monitoring of a reef and the placement of a reef are separate projects and should have separate proposals.

Response: NOAA disagrees. Monitoring is an integral part of proposing to place an artificial reef within a NMS. A permittee should not propose to establish an artificial reef inside a NMS unless they are prepared to collect quantifiable monitoring data and have sufficient resources to do so. As discussed in section 2.5.1.1. there are several different types of monitoring that would be part of any artificial reef project. Some will be designed to determine the effectiveness of the artificial reef project in meeting goals and providing benefits to the Sanctuary. Other forms of monitoring will be designed to determine the effects of the project on the resources of the Sanctuary.

Comment 31. One commenter did not agree with the discussion regarding lifetime monitoring.

Response: Stability monitoring will be conducted as long as the artificial reef is in NMS waters. Other forms of monitoring may vary in length depending on the expected life of the project, the questions the monitoring is designed to answer, and other factors.

Comment 32. Some commenters inquired as to what would happen if a permittee were to withdraw from the permitting agreement. Inquiries were also made on how permits will be enforced.

Response: Before the NMSP issues a permit, it must be satisfied that the applicant has sufficient resources to comply with all permit terms and conditions, including the funding of long-term monitoring. The nature of this assurance will vary from permit to permit and is detailed in the policy.

A permittee cannot unilaterally withdraw from a permit agreement without violating the permit or NMSP regulations. If a permittee violates a term or condition of his/her permit, the permittee is subject to possible civil penalties under the NMSA.

Comment 33. Some comments questioned the types of building materials that would be approved in a potential artificial reef permit.

Response: NOAA regulations do not currently discriminate among materials. The policy gives guidance on which materials are better than others. NOAA will consult with the United States Army Corps of Engineers, Environmental Protection Agency, and relevant state agencies on a case-by-case basis to ensure that hazardous materials are not used. Compliance with a sanctuary permit does not necessarily relieve the permittee of his/her obligation to comply with all other applicable Federal, State, and local laws.

Today we are adopting an updated EDGAR Filer Manual (Filer Manual). The Filer Manual describes how to become an EDGAR filer and the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system. 1 It also describes the requirements for filing using EDGARLink  2 and the Online Forms/XML Web site.

The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format. 3 Filers should consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission. 4

The revisions to the EDGAR Filer Manual volumes are being made to improve, reorganize and restructure the EDGAR Filer Manual volumes to make it easier for filers, and those wishing to apply for EDGAR access codes, to locate the information that they need to apply for EDGAR access, maintain company information and submit electronic filings. The EDGAR Filer Manual has also been rearranged to eliminate information that was repeated between the different volumes and to be more aligned with the logical functions performed by EDGAR users. The reorganized filer manual does not include any changes to the filing process.

The EDGAR Filer Manual Volume I General Information covers the EDGAR application process, outlines how to keep company data, which is stored in EDGAR, current and provides a brief introduction to the filing process. The appendices in this volume, as well as those that are a part of the other volumes, “Glossary of Commonly Used Terms, Acronyms, and Abbreviations” and “Frequently Asked Questions” for example, only contain information specific to the processes and concepts covered within the volume. The appendices are no longer repeated in each volume. Volume I is intended to be a reference for those that need to obtain EDGAR access, those that are new to EDGAR and those that are responsible for keeping company information current.

The EDGAR Filer Manual Volume II EDGAR Filing focuses entirely on the filing process. It illustrates each step of the process to submit an electronic submission and helps filers understand the tools provided by the SEC for constructing and transmitting those submissions, concisely consolidating information previously provided in the former EDGAR Release 9.0 EDGARLink Filer Manual Volume I and EDGAR Release 9.0 OnlineForms Filer Manual Volume III. It also provides a much improved Index to Forms which, in addition to the Submission Type and Description, adds the name of the tool ( e.g. , EDGARLink or Online Forms/XML Web site), the template number that contains that particular submission type and the Filer Constructed Form Specification (formerly known as “Reduced Content Filing Specification”) that should be used by those that prepare filings without using EDGARLink or the OnlineForms/XML Web site. The Index to Forms is provided in alphanumeric order, which can be used by those that only know the submission type, as well as by Act. This volume is intended to be a reference for those that are responsible for submitting filings to the SEC via the EDGAR system.

The EDGAR Filer Manual Volume III N-SAR Supplement is the guide for preparing the electronic submissions of Form N-SAR. While this volume used to be Volume II of the EDGAR Filer Manual, its current content has remained essentially unchanged with the exception of the minor modifications necessary to update references to the other updated Filer Manual volumes.

Prior to the reorganization of the EDGAR Filer Manual, the version numbers assigned to each volume were based upon the EDGAR release number in which it was implemented. As of this revised Filer Manual, each volume will be baselined at Version One and will no longer follow the EDGAR release numbers. This will prevent the need to make changes to the EDGAR Filer Manual volumes simply to update the EDGAR release when none of the other content has been changed. The EDGAR Filer Manual volumes will only be updated when changes are made to the functions contained within a particular volume. Filers should consult the SEC's Public Web site, EDGAR Filing Web site or the EDGAR OnlineForms/XML Web site to determine the current version of the software or documents.

The SEC maintains a number of Web sites and URLs to support the filing process. As more sites and URLs have been developed, it has become more complicated for filers to find the correct site for a single function. To give filers a central location from which they can navigate to the EDGAR Web site that they need to access rather than having to remember the different URLs to each of the EDGAR Filing Web sites, we created an EDGAR Gateway Web site that can be reached at the following URL: https://www.portal.edgarfiling.sec.gov. The use of the new EDGAR Gateway Web site is optional. The existing EDGAR Filer Management, EDGAR Filing and EDGAR OnlineForms/XML Web sites can still be accessed as they have previously. The EDGAR Gateway Web site is expected to be available on or about September 26, 2005.

Along with adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51.

You may obtain paper copies of the updated Filer Manual at the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street, NE., Room 1580, Washington DC 20549. We will post electronic format copies on the Commission's Web site; the address for the Filer Manual is http://www.sec.gov/info/edgar.shtml. You may also obtain copies from Thomson Financial, the paper document contractor for the Commission, at (800) 638-8241.

Since the Filer Manual relates solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act. 5 It follows that the requirements of the Regulatory Flexibility Act  6 do not apply.

The effective date for the updated Filer Manual and the rule amendments is fourteen (14) days after publication in the Federal Register . Because the changes made to reorganize the Filer Manual were made solely for the purposes of clarity and do not change the filing process, we find that there is good cause to establish an effective date less than 30 days after publication of these rules.

We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933, 7 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934, 8 Section 20 of the Public Utility Holding Company Act of 1935, 9 Section 319 of the Trust Indenture Act of 1939, 10 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940. 11

The expedited reinstatement provision, along with other work incentives and the Ticket to Work program contained in the Ticket to Work and Work Incentives Improvement Act of 1999 (Pub. L. 106-170) is intended to expand your options as a Social Security disability beneficiary or a disabled or blind Supplemental Security Income recipient. We expect that the expedited reinstatement provision along with other provisions in the Ticket to Work and Work Incentives Improvement Act of 1999 will remove some of the disincentives that may discourage you from either attempting to work or increasing your work activity. If more beneficiaries with disabilities engage in self-supporting work, the net result will be an increase in the independence of disabled beneficiaries, a reduction in the Social Security and Supplemental Security Income disability rolls, and savings to the Social Security Trust Fund and general revenues.

The expedited reinstatement provision is intended to relieve some concerns you may have about returning to work. If we terminate your entitlement or eligibility for benefits due to your work activity, this provision provides you an easier way to have your entitlement or eligibility reinstated and to be placed back into payment status. This process should ease some concerns you may have about what will happen if your attempt to return to work is unsuccessful.

During the preparation of these final rules, we consulted with the Ticket to Work and Work Incentives Advisory Panel. The Ticket to Work and Work Incentives Advisory Panel was established by section 101(f) of the Ticket to Work and Work Incentives Improvement Act of 1999. This panel advises the President, the Congress, and us on issues related to work incentive programs, planning and assistance for individuals with disabilities and the Ticket to Work Program established under this Act.

Congress indicated that the purpose of section 112 of the Ticket to Work and Work Incentives Improvement Act of 1999 (the expedited reinstatement provision) was to encourage disability beneficiaries to return to work by reassuring them that if they meet our disability standards their benefits would be restored in a timely fashion should they become unable to continue working.

The expedited reinstatement provision provides a method for you to have your disability benefits reinstated without filing an application if you have had your entitlement to, or eligibility for, benefits terminated due to your work activity during the previous 5 years, and you can no longer do substantial gainful activity.

The expedited reinstatement provision provides you another option for regaining entitlement to benefits under title II and eligibility under title XVI of the Act after we have terminated your entitlement to or eligibility for disability benefits due to your work activity. If you file a request for expedited reinstatement, you can still file a new application for benefits under existing initial claim rules.

Prior to the effective date of this provision, when we terminated your entitlement or eligibility due to work activity, you were required to file a new application to become entitled to or eligible for benefits again. We processed your application under rules that required a new disability determination using the medical requirements that we apply when you file an initial claim for benefits. You generally were entitled to receive benefits only after we processed your entitlement or eligibility determination. If we determined that you again qualified for benefits, you became eligible for work incentives such as the trial work period, the reentitlement period, and special SSI eligibility status under your new period of disability.

The expedited reinstatement provision provides you the option of requesting that your prior entitlement to or eligibility for disability benefits be reinstated, rather than filing a new application for a new period of entitlement or eligibility. Since January 1, 2001, you can request to be reinstated to benefits if you stop doing substantial gainful activity within 60 months of your prior termination. At the time you request reinstatement, you must be unable to engage in substantial gainful activity because of your medical condition. Your current impairment must be the same as or related to your prior impairment and you must be disabled. To determine if you are disabled, we will use our medical improvement review standard that we use in our continuing disability review process. Under the medical improvement review standard, we will generally find that you are disabled, unless there is substantial evidence demonstrating that there has been medical improvement in your impairment(s) and the improvement is related to your ability to work.

When you request reinstatement you can be paid up to 6 months of provisional benefits, and may be entitled to Medicare benefits or Medicaid, while we are deciding whether you qualify for reinstatement. Provisional benefits, or payments, are cash benefits that can be paid to you on a temporary basis when you were previously a Social Security (title II) disability beneficiary or a disabled or blind Supplemental Security Income (title XVI) recipient and you are now requesting reinstatement. The period during which you can receive provisional benefits is your provisional benefit period. This period begins with the first month you can receive provisional benefits and can never extend beyond six consecutive months. Your provisional benefit period will end earlier than the sixth consecutive month if we make our determination on your request for reinstatement before that month. Your title II provisional benefit period will also end if you attain full retirement age or if you do substantial gainful work activity.

You can receive title II provisional benefits beginning with the month you file your request for reinstatement. We will base your provisional benefit amount ( i.e. , the amount of the monthly cash benefit you receive during the provisional benefit period) on the prior benefit amount that was actually payable to you under title II. We will terminate your title II provisional benefits when your provisional benefit period ends, such as if you do substantial gainful activity. You can receive title XVI provisional payments beginning with the month after you file your request for reinstatement. We will base your title XVI provisional benefit amount ( i.e. , the amount of the monthly cash payment you receive during the provisional benefit period) on the Federal Supplemental Security Income benefit that would actually be payable to you for each month in the provisional benefit period, depending on your income. We will terminate your title XVI provisional payments when your provisional benefit period ends. If you have previously received provisional benefits based upon a prior request for reinstatement, you cannot receive additional provisional benefits if you file a second request for reinstatement based on the same prior entitlement or eligibility. This could occur, for example, if we denied your prior request for reinstatement and then you subsequently file a new request for reinstatement because you believe you meet the requirements.

We are also amending §§ 404.903 and 416.1403 to indicate, consistent with the expedited reinstatement legislation, that the determination we make regarding your right to receive provisional benefits is not an initial determination and it is, therefore, not subject to administrative review under subpart J of part 404 and subpart N of part 416.

If we deny your request for reinstatement, we generally will not consider the provisional benefits you received as an overpayment. If your reinstatement request is denied, and you have not filed a new benefits application, we will treat that request as your intent to file an initial application for benefits. If we approve your request for reinstatement, we will reinstate your prior disability entitlement or eligibility and reestablish your Medicare/Medicaid entitlement, as appropriate, if you are not already entitled to Medicare/Medicaid. We will pay you reinstated benefits under title XVI beginning with the month after the month in which you file your request. We will pay you reinstated benefits under title II beginning no later than the month in which you file your request. We can pay you title II reinstated benefits for any of the 12 months preceding your request for reinstatement if you would have met all of the requirements for reinstatement had you requested reinstatement in that month. We will reduce reinstated benefits payable for a month by the amount of any provisional benefits that you already received for that month.

When we reinstate your entitlement under this provision, you are then entitled to a 24-month initial reinstatement period. Your 24-month initial reinstatement period begins with the month your benefits are reinstated and ends with the 24th month that you have a benefit payable. For title II purposes, we consider a benefit to be payable in a month when you do not do substantial gainful activity and the non-payment provisions in subpart E of part 404 do not apply. For title XVI purposes, we consider a benefit to be payable in a month when, using normal payment calculation procedures in subpart D of part 416, we determine you are due a monthly payment, or you are considered to be receiving SSI benefits in a month under section 1619(b) of the Act. After the 24-month initial reinstatement period is completed, you are eligible for additional work incentives under title II (such as a trial work period and a reentitlement period), as well as possible future reinstatement through the expedited reinstatement provision under title II and title XVI.

We published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on October 27, 2003 (68 FR 61162), which proposed rules regarding the expedited reinstatement provision of the Act. We provided a 60-day period for the public to comment. We subsequently extended the comment period to January 16, 2004 (69 FR 307 (2004)). We received comments from 72 commenters. We discuss the significant public comments we received on the NPRM and provide our responses to those comments later in this preamble under “Public Comments on the Notice of Proposed Rulemaking.” As we explain below under “ Explanation of Changes to Regulations ,” in these final rules we are making some changes from the proposed rules in response to these public comments.

We are amending our regulations to provide the rules for expedited reinstatement. These rules add §§ 404.1592b through 404.1592f to part 404 and §§ 416.999 through 416.999d to part 416.

Section 404.1592b provides a general overview of expedited reinstatement and summarizes the basic requirements for expedited reinstatement, as discussed in §§ 404.1592c through 404.1592f. In response to public comments, we have revised the requirement in the NPRM that you must have stopped doing substantial gainful activity because of your medical condition to instead provide that you must be unable to do substantial gainful activity because of your medical condition. In these final rules we also revised the proposed reference in the last sentence of this section from § 404.1592g to § 404.1592f because we deleted proposed § 404.1592e.

Section 404.1592c describes the requirements for reinstatement to title II benefits. Section 223(i)(1) of the Act lists the requirements you must meet to have your entitlement reinstated under the title II expedited reinstatement provision. These rules explain that you must have previously been entitled as a disabled insured individual, a disabled child, a disabled widow or widower, or a disabled Medicare qualified government employee. We must have terminated your prior entitlement due to your doing substantial gainful activity. You must be unable to do substantial gainful activity due to your medical condition. Your current impairment must be the same as or related to the impairment on which we based your prior period of disability, and you must currently be disabled. Section 223(i)(3) of the Act requires us to use the medical improvement review standard in section 223(f) of the Act when we determine if you are disabled for the purposes of this provision. If your entitlement is reinstated, an auxiliary beneficiary who was previously entitled on your record can also be reinstated. The auxiliary beneficiary must request reinstatement and must meet the current entitlement factors for the benefit.

In response to public comments, we are not requiring in these final rules that you stopped working due to your medical condition. However, as required under section 223(i)(1)(B)(iii) of the Act, these final rules provide that you must be unable to do substantial gainful activity because of your medical condition. We will determine that you meet the requirement that you are unable to do substantial gainful activity due to your medical condition when:

(1) You file, under § 404.1592d, your request for reinstatement stating that you are unable do substantial gainful activity due to your medical condition,

(2) You do not do substantial gainful activity in the month you file your request for reinstatement, and

(3) We determine that you are under a disability, based on the application of the medical improvement review standard, as required by § 404.1592c(a)(4).

We believe this more closely follows the requirement in section 223(i)(1)(B)(iii) of the Social Security Act and removes a possible disincentive for you to return to work.

In response to public comments, in these final rules we also deleted proposed § 404.1592c(b) and redesignated proposed § 404.1592c(c) to § 404.1592c(b). We made these changes from the proposed rules so that you may be able to make a second request for reinstatement of entitlement. Therefore, for example, if your request for expedited reinstatement is denied because we either determine that your current impairment is not the same as or related to the impairment that we used as the basis for your previous entitlement or eligibility, or that you are not disabled, you may be able to be reinstated on a later request for reinstatement provided you meet the requirements in § 404.1592c at that time. However, as we explain in § 404.1592e, in these final rules we have added that you cannot be paid additional provisional benefits based on the subsequent request if you received provisional benefits based on the first request. By deleting proposed § 404.1592c(b), these final rules now provide that you may be able to be reinstated on your request for reinstatement even if, after your prior entitlement had been terminated because of the performance of substantial gainful activity, we had made an intervening determination that you were no longer disabled under the medical improvement review standard because we conducted a continuing disability review on a disability entitlement or a medical review on your Medicare entitlement. We believe these changes make expedited reinstatement more responsive to your needs, while maintaining the integrity of the program.

Section 404.1592d describes how to request reinstatement of benefits under the expedited reinstatement provision. Your request must be made in writing. Section 223(i)(2)(A) of the Act lists what you must include in your request for reinstatement and authorizes us to determine the form of the request and the information it must contain. You must file your request within the consecutive 60-month period that begins with the month that we terminated your prior entitlement to disability benefits due to the performance of substantial gainful activity. However, we may extend this time period if we determine that you had good cause for failing to file your request within the 60-month time period. Your request must state that you are disabled, that your current impairment is the same as or related to the impairment that was used as the basis for your prior disability entitlement, and that you cannot do substantial gainful activity because of your medical condition. Your request must also include the information we need to help us determine whether you meet the non-medical factors of entitlement for the benefit and the information we need to make the medical determination. Your request for reinstatement must be filed on or after January 1, 2001. In response to public comments, in these final rules we changed the proposed rule in § 404.1592d(d)(2) which stated that you must certify that you became unable to continue to do substantial gainful activity because of your medical condition. These final rules have been revised to require that you certify that you cannot do substantial gainful activity due to your medical condition. This change is necessary due to our decision to delete the proposed § 404.1592e.

In response to public comments, we deleted the proposed § 404.1592e as these final rules do not require that you stopped working (or reduced your work and earnings below the substantial gainful activity level) because of your impairment. Therefore, the proposed § 404.1592e is no longer necessary. As a result of this deletion, we changed §§ 404.1592f and 404.1592g in the proposed rules to § 404.1592e and § 404.1592f, respectively, in these final rules.

Section 404.1592e now provides information on when your title II provisional benefits start, how they are computed, when they are paid, and when they end. Section 223(i)(7) of the Act lists the requirements for us to pay provisional benefits while we are determining whether to approve your request for reinstatement. Consistent with the law, these rules explain that we can pay you up to 6 months of provisional benefits during your provisional benefit period. In addition, if you are not already entitled to Medicare, we can reestablish your Medicare entitlement during your provisional benefit period. Your entitlement to provisional benefits begins with the month your reinstatement request is filed. We will base your provisional benefit amount on your monthly insurance benefit that was actually payable to you at the time we terminated your prior entitlement. We will increase your prior benefit amount payable by any intervening cost of living increases that would have been applicable to the prior benefit amount under section 215(i) of the Act. If you are entitled to another title II benefit or another provisional benefit, the maximum benefit amount we will pay you when all benefits are combined will be the amount of your highest computed benefit. If you request reinstatement as a disabled widow or widower or a disabled child, we will not reduce your provisional benefit, or the payable benefits to other individuals entitled at that time on the same record when your provisional benefit causes the total benefits payable on the record to exceed the family maximum.

Based on revisions to the proposed rules that we are making in response to public comments, these final rules provide that if you have previously received provisional benefits based upon a prior request for reinstatement, you cannot receive a second period of provisional benefits if you file a second request for reinstatement based on the same prior entitlement. In addition, as already provided in the proposed rules, we will not pay you provisional benefits for a month if you are not entitled to payment for the month under our usual rules, such as if you are a prisoner. We also will not pay you provisional benefits for any month that is after the earliest of the following months: the month we send you notice of our determination on your request for reinstatement; the first month you do substantial gainful activity; the month before you attain retirement age; or the fifth month following the month you filed your request for reinstatement. You are not entitled to provisional benefits if, prior to starting your provisional benefits, we determine that you do not meet the requirements for reinstatement such as when: we determine that you did not file your request for reinstatement in a timely manner; or we determine that your prior entitlement did not terminate because of your doing substantial gainful activity; or, as provided in these final rules, we determine that, in the month you requested reinstatement, you did not meet the requirement of being unable to engage in substantial gainful activity because of your medical condition. As provided in the final rules, you are also not entitled to provisional benefits if we determine that your statements on your request for reinstatement are false. Our determinations on provisional benefit amounts, when they are payable, and when they terminate, are final and are not subject to formal administrative review. We will not recover a previously existing overpayment from your provisional payments unless you give us permission to do so. If we determine you are not entitled to reinstated benefits, usually we will not consider the provisional benefits you received as an overpayment unless we determine you knew or should have known that you did not qualify for reinstatement and therefore you should not have received the provisional benefits. In these final rules we added a clarification in § 404.1592e(h) that provides if you receive provisional benefits when you are not entitled to provisional benefits because we determined you are not entitled to reinstatement before any provisional benefits were paid to you, the payments may be subject to recovery as an overpayment. Provisional benefits may also be subject to recovery as an overpayment if we pay you a provisional benefit for a month that comes after we determine you are not entitled to reinstated benefits.

In response to public comments, these final rules have been revised from the proposed rules to allow you to request reinstatement after being denied in a prior request. As these final rules provide you can file subsequent requests for reinstatement, we have also revised these final rules to provide that if you file a subsequent request for reinstatement on the same prior entitlement, after having received provisional benefits based upon the prior reinstatement request, you cannot be paid additional provisional benefits. In these final rules we changed § 404.1592f from the proposed rule to § 404.1592e since we deleted in its entirety the proposed § 404.1592e. In these final rules we have also deleted proposed § 404.1592f(d)(2) and redesignated proposed § 404.1592f(d)(3) as § 404.1592e(e)(2). This was necessary since proposed § 404.1592f(2) referenced deleted § 404.1592c(b).

Section 404.1592f now discusses how we determine your reinstated benefits consistent with the requirements regarding paying reinstated benefits in section 223(i) of the Act. These final rules explain that if we have determined we can reinstate you in the month you filed your reinstatement request, we will then consider whether we can pay you retroactive reinstated benefits. We will reinstate your benefits beginning with the earliest month in the 12-month period immediately preceding the month you requested reinstatement in which you would have met all of the reinstatement requirements if you had filed your request for reinstatement in that month. We will also reinstate your Medicare entitlement. Your entitlement to title II disability benefits and Medicare, under the expedited reinstatement provision, cannot be reinstated for a month prior to January 2001.

We will determine and pay your reinstated monthly benefits under our normal payment provisions of title II of the Act, with some exceptions. We will withhold from your reinstated benefits due for a month the amount of any provisional payments we already paid for that month. If the provisional benefits we paid you for a month exceed the amount of reinstated benefits due you for that month, we will consider the difference as an overpayment. We will use the same date of onset to calculate your new primary insurance amount as a reinstated individual that we used in your most recent period of disability. When you are reinstated, you are entitled to a 24-month initial reinstatement period. Your initial reinstatement period begins with the month your reinstated benefits begin and ends when you have had 24 months of payable benefits. We consider a month a payable month when you do not do substantial gainful activity and the non-payment provisions in subpart E of part 404 do not apply. During the initial reinstatement period, in addition to normal non-payment events, a benefit is not payable for any month in which you do substantial gainful activity. We will not apply the provisions of §§ 404.1574(c) and 404.1575(d) regarding unsuccessful work attempts, or the provisions of § 404.1574a regarding averaging of earnings, when we determine if you have done substantial gainful activity in a month during your initial reinstatement period. After you complete your initial reinstatement period, we will consider your future work under the work incentive provisions of title II of the Act. Your trial work period begins the month after you complete your initial reinstatement period. Your reinstated benefits end with the earliest month that precedes the third month following the month in which we determine your disability ceases, the month we terminate your benefits for another reason, the month you reach retirement age, or the month you die.

We consider determinations we make regarding your title II reinstated benefits to be initial determinations subject to administrative and judicial review. If we determine you are not entitled to reinstated benefits, we will consider your request for reinstatement as your intent to file a new initial claim for the benefit.

In these final rules we changed § 404.1592g from the proposed rule to § 404.1592f, since we deleted in its entirety the proposed § 404.1592e. In these final rules we added a sentence to § 404.1592f(d) that provides if the amount of the provisional benefit already paid you for a month equals or exceeds the amount of the reinstated benefit payable for that month so that no additional payment is due, we will consider that month a payable month under § 404.1592f. We added this sentence to clarify in these final rules our intent in the NPRM; it was not intended as a change from the proposed rules. We also changed references to § 404.900 through § 404.999 in paragraph (g) of the NPRM to subpart J of part 404 in these final rules. This has been done for simplification purposes and is not intended as a change from the proposed rules.

Section 416.999 provides a general overview of expedited reinstatement and summarizes the basic requirements for expedited reinstatement, as discussed in §§ 416.999a through 416.999d. In response to public comments, in these final rules we have revised the requirement in the NPRM that you must have stopped doing substantial gainful activity because of your medical condition to instead provide that you must be unable to do substantial gainful activity because of your medical condition. In these final rules we also revised the proposed reference in the last sentence of the section from § 416.999e to § 416.999d because we deleted the NPRM proposed § 416.999c.

Section 416.999a describes the requirements for reinstatement to title XVI benefits. Section 1631(p)(1) of the Act lists the requirements you must meet to be reinstated under the title XVI expedited reinstatement provision. These rules explain that you must have previously been eligible for SSI based on disability or blindness. We must have terminated your prior eligibility due to earned income or a combination of earned and unearned income. You must be unable to do substantial gainful activity due to your medical condition. Your current impairment must be the same as or related to the impairment on which we based your prior eligibility, and you must currently be disabled. Section 1631(p)(3) of the Act requires we use the medical improvement review standard in section 1614(a)(4) of the Act when we determine if you are disabled for the purposes of this provision. If you are reinstated, your spouse can also be reinstated if your spouse was previously eligible. Your spouse must request reinstatement and must meet the current eligibility factors for title XVI benefits.

In response to public comments, we are not requiring in these final rules that you stopped working due to your medical condition. However, as required under section 1631(p)(1)(B)(iii) of the Act, these final rules now provide that you must be unable to do substantial gainful activity because of your medical condition. When you file your request for reinstatement under § 416.999b that states you are unable to do substantial gainful activity due to your medical condition; and you do not do substantial gainful activity in the month you file your request for reinstatement; and we determine that you are under a disability, based on the application of the medical improvement review standard, as required by § 416.999a(a)(4); we will determine that you meet the requirement that you are unable to do substantial gainful activity due to your medical condition. We believe this more closely follows the requirement in section 1631(p)(1)(B)(iii) of the Act and removes a possible disincentive for you to return to work.

In response to public comments, in these final rules we also deleted proposed § 416.999a(b) and redesignated proposed § 416.999a(c) to § 416.999a(b). We are making these changes from the proposed rules so that you may be able to make a second request for reinstatement of eligibility. Therefore, for example, if your request for expedited reinstatement is denied because we either determine that your current impairment is not the same as or related to the impairment that we used as the basis for your previous entitlement or eligibility, or that you are not disabled, you may be able to be reinstated on a later request for reinstatement provided you meet the requirements in § 416.999a at that time. However, as we explain in § 416.999c, in these final rules we have added that you cannot be paid additional provisional benefits based on the subsequent request if you received provisional benefits based on the first request. By deleting proposed § 416.999a(b), these final rules now provide that you may also be able to be reinstated on your request for reinstatement even if, after your prior eligibility had been terminated because of your work activity, we had made an intervening determination that you were no longer disabled under the medical improvement review standard because we conducted a continuing disability review on a disability eligibility. We believe these changes make expedited reinstatement more responsive to your needs, while maintaining the integrity of the program.

Section 416.999b describes how to request reinstatement of benefits under the expedited reinstatement provision. Your request must be in writing. Section 1631(p)(2)(A) of the Act lists what you must include in your request for reinstatement and authorizes us to determine the form of the request and the information it must contain. You must file your request within the consecutive 60-month period that begins with the month that we terminated your prior eligibility to disability benefits because of earnings. However, we may extend this time period if we determine that you had good cause for failing to file your request within the 60-month time period. Your request must state that you are disabled, that your current impairment is the same as or related to the impairment that we used as the basis for your prior disability eligibility, that you cannot do substantial gainful activity because of your medical condition, and that you meet all of the non-medical requirements for eligibility. Your request must also include the information we need to determine whether you meet the non-medical factors of eligibility for the benefit and the information we need to make the medical determination. Your request for reinstatement must be filed on or after January 1, 2001. In response to public comments, in these final rules we changed the proposed rule in § 416.999b(e) which stated that you must certify that you became unable to continue to do substantial gainful activity because of your medical condition. These final rules have been revised to require that you certify that you cannot do substantial gainful activity due to your medical condition. This change is necessary due to our decision to delete the proposed § 416.999c.

In response to public comments, we deleted proposed § 416.999c as these final rules do not require that you stopped working (or reduced your work and earnings below the substantial gainful activity level) because of your impairment. Therefore, the proposed § 416.999c is no longer necessary. As a result of this deletion, we changed §§ 416.999d and 416.999e in the proposed rules to §§ 416.999c and 416.999d, respectively, in these final rules.

Section 416.999c now provides information on when your title XVI provisional benefits start, how they are computed, when they are paid, and when they end. Section 1631(p)(7) of the Act lists the requirements for us to pay you provisional benefits while we are determining whether to approve your request for reinstatement. Consistent with the law, these final rules explain that we can pay you up to 6 months of provisional benefits during your provisional benefit period. Your provisional benefits will begin with the month after you request reinstatement. We will base your provisional benefit amount on normal computational methods for an individual receiving SSI benefits under title XVI of the Act with the same amounts and kind of income. If your spouse also requests reinstatement, we can pay provisional payments to your spouse. Your spouse must meet SSI eligibility requirements, except those relating to the filing of an application, before we can pay provisional payments. We will use the same computation method used for you and your spouse's provisional benefit that we would use to figure an eligible individual and eligible spouse receiving non-provisional benefits under title XVI of the Act with the same kind and amount of income. As required by section 1631(p)(8) of the Act, you are not eligible for state supplementary payments during the provisional benefit period.

Based on revisions to the proposed rules that we are making in response to public comments, these final rules provide that if you have previously received provisional benefits based upon a prior request for reinstatement, you cannot receive a second period of provisional benefits if you file a second request for reinstatement based on the same prior eligibility. In addition, as already provided in the proposed rules, we will not pay you provisional benefits for any month where a suspension or terminating event occurs under our usual rules, such as when you are in an institution or if you die. We also will not pay provisional benefits for any month after the earliest month either of the following events occurs: the month we send you our notice of our determination on your request for reinstatement; or the sixth month following the month you filed your request for reinstatement. You are not eligible for provisional benefits if, prior to starting your provisional benefits, we determine you do not meet the requirements for reinstatement such as when: We determine that you did not file your request for reinstatement timely; or we determine that your prior eligibility terminated for a reason unrelated to income; or, as provided in these final rules, we determine that you engaged in substantial gainful activity in the month you requested reinstatement. As provided in the final rules, you are also not eligible for provisional benefits, if we determine that your statements on your request for reinstatement are false. Our determinations on your provisional benefit amounts, when they are payable, and when they terminate, are final and are not subject to formal administrative review. We will not recover previously existing overpayments from your provisional payments unless you give us permission to do so. If we determine that you are not eligible for reinstated benefits, usually we will not consider the provisional payments you received as an overpayment unless you knew or should have known that you did not qualify for reinstatement and you should not have received provisional payments. In these final rules we added a clarification in § 416.999c(h) that provides if you receive provisional benefits when you are not entitled to provisional benefits because we determined you are not entitled to reinstatement before any provisional benefits were paid to you, the payments may be subject to recovery as an overpayment. Provisional benefits may also be subject to recovery as an overpayment if we pay you a provisional benefit for a month that comes after we determine you are not entitled to reinstated benefits.

In response to public comments, these final rules have been revised from the proposed rules to allow you to request reinstatement after being denied in a prior request. As these final rules provide you can file subsequent requests for reinstatement, we have also revised these final rules to provide that if you file a subsequent request for reinstatement on the same prior eligibility, after having received provisional benefits based upon the prior reinstatement request, you cannot be paid additional provisional benefits. In these final rules we changed § 416.999d from the proposed rule to § 416.999c since we deleted in its entirety the proposed § 416.999c. In these final rules we have also deleted proposed § 416.999d(d)(2) and redesignated proposed § 416.999d(d)(3) as § 416.999c(e)(2). This was necessary since proposed § 416.999d(d)(2) referenced deleted § 416.999a(b).

Section 416.999d now discusses how we determine your reinstated SSI benefits consistent with the requirements regarding paying reinstated benefits in section 1631(p)(4) of the Act. These final rules explain that we will reinstate your eligibility, and your spouse's eligibility, with the month following the month you filed your request for reinstatement. Your eligibility cannot be reinstated for a month prior to February 2001.

We will determine and pay your reinstated benefits under the normal payment provisions of title XVI of the Act, with one exception. We will withhold from your reinstated benefits due in a month the amount of any provisional payments you were already paid for that month. If we pay you a provisional benefit for a month that exceeds the amount of your reinstated benefit due for that month, we will consider the difference an overpayment. When your request for reinstatement is approved, you are eligible for a 24-month initial reinstatement period. Your initial reinstatement period begins with the month your reinstated benefits begin and ends when you have had 24 months of payable benefits. We consider a month a payable month when, considering the normal payment rules, you are due a benefit payment for the month. As a result of public comments, we have also clarified in these final rules in § 416.999d(c) that we will consider a month a payable month in your initial reinstatement period if you are considered to be receiving SSI benefits in a month under section 1619(b) of the Act. After you complete the initial reinstatement period, you are again eligible for expedited reinstatement if we terminate your eligibility due to income. Your reinstated benefits end with the earliest month that precedes the third month following the month in which we determine your disability ceases, the month before we terminate your eligibility for another reason, or the month you die.

We consider determinations we make regarding your title XVI reinstated benefits to be initial determinations subject to administrative and judicial review. If we determine you are not eligible for reinstated benefits we will consider your request for reinstatement your intent to file a new initial claim for benefits.

In these final rules we changed § 416.999e from the proposed rule to § 416.999d since we deleted in its entirety the proposed § 416.999c. In these final rules we added a sentence to § 416.999d(c) that provides if the amount of the provisional benefit already paid you for a month equals or exceeds the amount of the reinstated benefit payable for that month so that no additional payment is due, we will consider that month a payable month under § 416.999d. We also changed references to §§ 416.1400 through 416.1499 in paragraph (e) of the NPRM to subpart N of part 416 in these final rules. This has been done for simplification purposes and is not intended as a change from the proposed rules.

We published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on October 27, 2003 (68 FR 61162), which proposed rules regarding the Expedited Reinstatement provision. We provided a 60-day period for the public to comment ending December 26, 2003. We subsequently extended the comment period to January 16, 2004. (69 FR 307 (1994)). We received comments from 72 commenters. We carefully considered the comments we received on the proposed rules in publishing these final rules. The comments we received and our responses to the comments are set forth below. Although we condensed, summarized, or paraphrased the comments, we believe we have expressed the views accurately and have responded to all the relevant issues raised.

Comment: Multiple commenters indicated that we should modify proposed §§ 404.1592c(b) and 416.999a(b), which stated that your entitlement could not be reinstated under the expedited reinstatement provision if we had previously denied your prior request for expedited reinstatement because we determined you were not disabled or because we determined you did not have a same as or related impairment, or because, after your prior entitlement had been terminated because of your work activity, we had made an intervening determination that you were no longer disabled based upon a prior medical review or continuing disability review. These commenters indicated that these sections could limit the effectiveness of expedited reinstatement by not allowing you to use this provision more than once. Other commenters suggested that we should either delete §§ 404.1592c(b) and 416.999a(b) or provide a time limit after which a second request for reinstatement could be allowed.

Response: Based upon these comments, we decided to delete proposed §§ 404.1592c(b) and 416.999a(b) from these final rules. Therefore, if your request for expedited reinstatement is denied because we either determine that your current impairment is not the same as or related to the impairment that we used as the basis for your previous entitlement or eligibility, or that you are not disabled, as determined under the medical improvement review standard in §§ 404.1594(a) through 404.1594(e), 416.994, or 416.994a, you may be able to be reinstated on a later request for reinstatement provided you meet the requirements in § 404.1592c or § 416.999a at that time. However, as we explain in our discussion of § 404.1592e and § 416.999c, these final rules have been revised to provide that you cannot be paid additional provisional benefits based on a subsequent request if you received provisional benefits based on the first request. You also may be able to be reinstated on your request for reinstatement if, after your prior entitlement had been terminated because of your work activity, we made an intervening determination that you were no longer disabled under the medical improvement review standard because we conducted a continuing disability review on a disability entitlement or eligibility or a medical review on your Medicare entitlement. We believe these changes make expedited reinstatement more responsive to those people with episodic impairments and serve as a better incentive to return to work, while also maintaining the integrity of the program.

Comment: Multiple commenters indicated that we should change our proposed rules in §§ 404.1592b, 404.1592e, 416.999 and 416.999c to state that you should not have to have stopped working due to your medical condition to qualify for expedited reinstatement.

Response: We agree with these comments. In these final rules we deleted the requirement in NPRM sections §§ 404.1592b, 404.1592e, 416.999, and 416.999c that you must have stopped working due to your medical condition. These final rules have been revised to require under §§ 404.1592b, 404.1592c(a)(4)(i), 416.999, and 416.999a(4)(i) that you must be unable to do substantial gainful activity because of your medical condition. Also, when you file your request for reinstatement under §§ 404.1592d and 416.999b these final rules provide, as required by sections 223(i)(2)(A)(ii) and 1631(p)(2)(A)(ii) of the Act, that you will need to certify that you cannot do substantial gainful activity due to your medical condition. This requirement was changed from the NPRM that you certify that you became unable to do substantial gainful activity due to your medical condition. When you file your request for reinstatement stating that you cannot do substantial gainful activity due to your medical condition, you do not do substantial gainful activity in the month you file your request for reinstatement, and we determine that you are under a disability, based on the application of the medical improvement review standard, as required by §§ 404.1592c(a)(4) and 416.999a(a)(4), we will then determine that you meet the requirement that you cannot do substantial gainful activity due to your medical condition. We believe this more closely follows the requirement in sections 223(i)(1)(B)(iii) and 1631(p)(1)(B)(iii) of the Social Security Act as it conforms to the plain language of the statue that states your disability must render you unable to do substantial gainful activity. Therefore, your medical condition does not have be the reason you stopped working, but it must cause you to now be unable to do substantial gainful activity.

We, therefore, deleted in their entirety the proposed rules in §§ 404.1592e and 416.999c as they are no longer necessary. Since we deleted §§ 404.1592e and 416.999c, we changed proposed §§ 404.1592f, 404.1592g, 416.999d and 416.999e to §§ 404.1592e, 404.1592f, 416.999c and 416.999d, respectively, in these final rules. As indicated above, in these final rules we have also made necessary changes in proposed §§ 404.1592b, 404.1592d, 416.999 and 416.999b.

Comment: Multiple commenters expressed the view that if we remove the requirement in §§ 404.1592e and 416.999c that you must have stopped your work activity due to your medical condition, we could then also remove the requirement that we must do a continuing disability review to determine whether you are disabled when you request reinstatement. One commenter suggested that we should reestablish the medical diary review date on your reinstatement and do the medical review at the previously scheduled time.

Response: We deleted proposed §§ 404.1592e and 416.999c. However, even though we deleted those rules, we still have to make a medical determination when you request reinstatement. Sections 223(i)(3) and 1631(p)(3) of the Act require we use the requirements of sections 223(f) and 1614(a)(4) to determine whether you are under a disability, or blind or disabled, respectively. These sections also require that you must have a current physical or mental impairment that is the same as or related to the impairment that was the basis for the finding of disability that gave rise to your prior entitlement or eligibility. Therefore, the medical determination we make when you request reinstatement is an entitlement or eligibility determination that uses, in part, our medical improvement review standard. Since the statute requires you must be disabled (or blind), we are continuing to include that requirement in these final rules in §§ 404.1592c(a)(4) and 416.999a(a)(4).

Comment: Multiple commenters suggested that we reword the preamble explanation of proposed § 404.1592f(a)(6) (§ 404.1592e(a)(6) in these final rules) to more closely match the wording of the regulation. These commenters stated that the wording in the preamble could be misinterpreted to mean that we would adjust provisional benefits payable when the provisional benefits, plus the benefit payable to beneficiaries already entitled on the record, exceed the family maximum benefit payable.

Response: We reworded the preamble discussion of this provision to more closely match the wording of § 404.1592e(a)(6) in these final rules. We believe the revised preamble is clearer as it now states that we will not reduce your provisional benefit, or the payable benefits to other individuals entitled at that time on the same record, when your provisional benefit causes the total benefits payable on the record to exceed the family maximum.

Comment: Multiple commenters indicated that under proposed §§ 404.1592g(c)(1) and 416.999e(b) (§§ 404.1592f(c)(1) and 416.999d(b) in these final rules) we should not recover as an overpayment provisional benefits that were paid to you that exceed the amount of the reinstated benefit you are due when the family maximum benefit is involved.

Response: Section 223(i)(7)(D) (and section 1631(p)(7)(D) for SSI cases) of the Act generally provides for the exclusion of the provisional benefits you have been paid from recovery as an overpayment when we determine that you are not entitled to reinstated benefits. That statutory exclusion is not applicable when we determine that you are entitled to reinstated benefits. Section 223(i)(4)(B)(iii) (and section 1631(p)(4)(B)(ii) for SSI cases) requires us to reduce your reinstated benefits by the amount of any provisional benefits you have been paid for the month. The Act does not provide for the exclusion from possible recovery as an overpayment the amount of provisional benefits that exceed your reinstated benefits when you are reinstated. We believe the number of overpayments, and the amount of those overpayments, created under §§ 404.1592f(c)(1) and 416.999d(c) of these final rules will be minimal. You can also request we waive adjustment or recovery of the overpayment under subpart F of part 404 (subpart E of part 416 for SSI cases).

Comment: Multiple commenters indicated that the 24 month initial reinstatement period in § 404.1592g(d) and § 416.999e(c), (§§ 404.1592f(d) and 416.999d(c) in these final rules) is confusing and should be simplified. One commenter expressed concern that we may not be able to process monthly wage reports on a timely basis, which could serve as a disincentive for you to return to work.

Response: The 24 month initial reinstatement period is established by sections 223(i)(6) and 1631(p)(6) of the Act. Furthermore, section 223(i)(4)(c) specifically provides that, when you are reinstated under the expedited reinstatement provision, we may not pay a benefit for any month in which you engage in substantial gainful activity. In developing the proposed rules, we attempted to avoid any unnecessary complexity regarding the 24 month initial reinstatement period, and did not add any complexity beyond what the statute requires. We have changed the section numbers from §§ 404.1592g and 416.999e to §§ 404.1592f and 416.999d, respectively, because, as explained in response to another comment, we decided to delete the proposed §§ 404.1592e and 416.999c. As a result of these comments, we have included two clarifications in these final rules that were not in the proposed rules. We have clarified in § 404.1592f(d) (and § 416.999d(c)) of these final rules that if the amount of the provisional benefit already paid you for a month equals or exceeds the amount of the reinstated benefit payable for that month, so no additional payment is due, we will consider that month a payable month in your initial reinstatement period. We have also clarified in these final rules in § 416.999d(c) that we will consider a month a payable month in your initial reinstatement period if you are considered to be receiving SSI benefits in a month under section 1619(b) of the Act. We recognize the need to process your work reports in a timely manner. We believe actions we have taken, outside of these final rules, are addressing this concern. We do not believe these final rules are the appropriate avenue to address this issue.

Comment: One commenter indicated that if you are requesting reinstatement on the record of an insured person under proposed § 404.1592c(c), you should not be required to file a new application to receive those benefits.

Response: Section 223(i)(5) of the Social Security Act provides that we may reinstate your entitlement on the record of an insured person if we determine that you satisfy the requirements for entitlement to such benefits (other than the requirements related to the filing of an application). Therefore, under proposed § 404.1592c(c), redesignated as § 404.1592c(b) in these final rules, and § 404.1592d, you must make a request for reinstatement (as opposed to filing an application) and your request must be in writing and provide us the information we request so that we can determine whether you meet the requirements for entitlement. The purpose of the form we require is to allow us to collect the information we need to determine whether you meet the requirements for reinstatement and to determine your proper benefit amount should we determine you can be reinstated.

Comment: Multiple commenters indicated that we should design a separate form to use to request reinstatement under §§ 404.1592d and 416.999b, rather than using already existing forms we use for other purposes. Commenters suggested we should possibly tailor the form to the reinstatement requirements or make the form shorter and easier to complete.

Response: Sections 223(i)(2)(A) and 1631(p)(2)(A) of the Act provide that we should determine the form and the information we need in your reinstatement request. These sections also specifically require that your request must include a statement that you are under a disability, the impairment that is the basis for the finding of disability is the same as or related to the impairment that was the basis for the finding of disability that gave rise to your prior disability entitlement, and that your disability renders you unable to perform substantial gainful activity. Therefore, your request for reinstatement under §§ 404.1592d and 416.999b must be made in writing and must provide us the information we need so that we can determine whether you meet the requirements for reinstatement. We have designed separate reinstatement request forms for you to use to request reinstatement. The purpose of the supplemental forms we require is to allow us to collect the additional information we need to determine whether you meet the requirements for reinstatement and to determine your proper benefit amount should we determine you can be reinstated. We are not developing a specialized supplemental form to collect the additional information we need, as the information needed is the same information we can collect using our existing forms.

Comment: One commenter indicated that deciding whether to file for reinstatement versus filing a new initial claim application may be difficult, so you should seek advice. This commenter suggested that we should include language in these final rules explaining the complexity of this decision and the need to consult with our staff and possibly others prior to making this decision.

Response: Our staff is trained to assist you when you decide whether to file a new initial application, or whether to file for expedited reinstatement. There can be advantages to filing a request for expedited reinstatement such as: the payment of provisional benefits, entitlement to Medicare benefits or Medicaid, using the medical improvement review standards for the medical determination, and protecting your filing for an initial claim if your expedited reinstatement request is denied. Also, for Social Security benefit purposes, if your benefits are reinstated on your own earnings record, we will compute your primary insurance amount with the same date of onset we used in your most recent period of disability on your earnings record. Since we will not pay you reinstated benefits for any months of substantial gainful activity during your initial reinstatement period, this could also be an advantage in extending your entitlement. There could also be some disadvantages to filing a request for reinstatement rather than a new initial application: such as, if we deny your request for reinstatement because we determine you are not disabled under the medical improvement review standard, we could also stop your Medicare benefits; in some circumstances your monthly benefit amount could be less than it would be if you became entitled to disability benefits again by filing a new application; and your trial work period begins after you have completed your 24 month initial reinstatement period rather than being immediately available to you if you became entitled again by filing a new application. It will normally be to your advantage to request expedited reinstatement rather than filing a new initial application; however, this decision will depend on your particular circumstances and you should discuss this thoroughly with our staff at the appropriate time. Since these decisions must be made based upon your own particular circumstances, we are not placing language in these final rules about these discussions beyond what is required to be eligible for, or entitled to, reinstatement.

When you contact us about filing a new initial application for benefits, or about requesting reinstatement, our staff will discuss with you your options and the effect of your decision. You could also choose to obtain information about your options from other knowledgeable sources. We want to make sure you make the decision that is the most advantageous for you. Since the decision on whether to request reinstatement is your decision, you should consider all of your individual circumstances, however, we do not believe we could properly discuss in these final rules everything you should consider. Since we cannot identify in these final rules all of the information you may need to make your decision, we also do not believe we could tell you how you should arrive at your decision. Therefore, while we do encourage you to discuss your situation with our staff and others who would be helpful, we do not believe we can include in these final rules a rule on how you should arrive at your decision.

Comment: One commenter noted that proposed § 416.999d (§ 416.999c in these final rules) discusses overpayment policies for provisional benefits when we determine that you are not eligible to receive reinstated benefits and suggested that clarifying this language may be helpful, especially when we say that provisional benefits already paid under § 416.999c will not be subject to recovery as an overpayment unless we determine you knew, or should have known, you did not meet the requirements for reinstatement.

Response: We considered this comment and decided not to change these final rules. The specific language regarding “whether you knew, or should have known,” is in § 416.999c(h) and is based upon the standard set forth in section 1631(p)(7)(D) of the Act. In these final rules we used the same phrasing as in the statute for whether you knew, or should have known. Our determination on whether you knew or should have known you did not meet the requirements for reinstatement will be based on the facts of your situation.

Comment: Multiple commenters indicated that under proposed §§ 404.1592f and 416.999d (§§ 404.1592e and 416.999c in these final rules), your provisional benefits should be extended beyond the six month limitation if we cannot make our determination within six months, or we should ensure all reinstatement determinations are made within six months.

Response: Sections 223(i)(7)(C)(ii) and 1631(p)(7)(C)(ii) of the Act require us to stop your provisional benefits with the earlier of the month in which we make our determination on your eligibility or entitlement for reinstated benefits or with the end of the fifth month after your provisional benefits start. Therefore, we can pay you no more than six months of provisional benefits. While we do try to make all determinations within this six month timeframe, since the Act considers the possibility we may not be able to do this and requires we stop payments if we haven't, we do not have the authority to extend provisional benefits beyond the consecutive six months that begin with the first month your provisional benefits can start under § 404.1592e or § 416.999c of these final rules.

Comment: One commenter indicated that we should clarify the circumstances when benefits would be offered under proposed § 416.999e(f) (§ 416.999d(f) of these final rules) when we say that if we deny your request for reinstatement, the denial protects your filing a new claim.

Response: Section 1631(p)(2)(B) (section 223(i)(2)(B) for title II cases) of the Act provides that a request for reinstatement may lead to constitute an application for benefits if we determine you are not eligible for reinstated benefits. These final rules, therefore, provide that if you request reinstatement under § 416.999b and we determine that we cannot reinstate your eligibility, we will then treat your request for reinstatement as your intent to file a new initial claim ( i.e. , a protective filing). The NPRM and these final rules do not place any restrictions on having your reinstatement request treated as a protective filing, other than we must determine you are not eligible for reinstated benefits. If we determine you are not eligible for reinstatement, you can then file a new initial application for benefits and have the date you filed your request for reinstatement considered to be your application filing date. If we determine your benefits cannot be reinstated, that determination is considered an initial determination and you can also request review if you are dissatisfied with it. If you choose, you can file a new initial application for benefits at the same time you request we review our determination that your benefits cannot be reinstated.

Comment: One commenter indicated that since an expedited reinstatement determination that denies eligibility becomes a new application there appears to be little gained by our insisting that the expedited reinstatement determination not be an initial determination for appeal purposes.

Response: We have considered this comment and have not changed these final rules. These final rules provide, under §§ 404.1592f and 416.999d, that determinations we make regarding your entitlement to or eligibility for reinstated benefits are initial determinations for purposes of our administrative review process. The NPRM, and these final rules, provide in §§ 404.903, 404.1592e(f), 416.999c(f), and 416.1403, that determinations we make regarding your provisional benefits are not initial determinations and are not subject to administrative or judicial review. We believe the commenter may have confused provisional benefit determinations with determinations we make regarding your entitlement to or eligibility for reinstatement.

Comment: Multiple commenters indicated that we should provide a means by which you can obtain a new ticket under the Ticket to Work program when your entitlement is reinstated under the expedited reinstatement provision.

Response: If you are reinstated under the expedited reinstatement provision, under §§ 404.1592b through 404.1592f or §§ 416.999 through 416.999d, you may be eligible for a new ticket under § 411.125(c). Since the Ticket to Work program already provides those rules, we have not included them in these final rules.

Comment: Multiple commenters stated that we should add a section to the expedited reinstatement rules to provide different rules for people using a ticket under the Ticket to Work program.

Response: Sections 223(i) and 1631(p) of the Act do not provide us the authority to provide different rules for you if you are using a ticket as part of the Ticket to Work program under §§ 411.100 through 411.735. The expedited reinstatement provision is a work incentive that you can use if you meet the requirements indicated in § 404.1592b or § 416.999, without consideration of whether you are using a ticket. We cannot add rules in these final rules that provide different rules for you if you are using a ticket.

Comment: One commenter stated that if you have assigned and are using a ticket under the Ticket to Work program, you should be allowed to move into payment status when you are not engaging in substantial gainful activity.

Response: As we noted in the prior response, we do not have the statutory authority to pay you benefits using different rules if you are using a ticket under the Ticket to Work Program. Section 223(i)(6) of the Act provides that after you have been reinstated and you have had 24 payable months, you will be afforded the work incentives that would have been provided you if you had filed a new initial application. Therefore, as we indicate in these final rules, after you have completed your 24 month initial reinstatement period you will then be provided a new trial work period and then a reentitlement period using the rules in §§ 404.1592 and 404.1592a.

Comment: One commenter expressed the view that the expedited reinstatement rules may discourage your employment network, under the Ticket to Work program, from providing additional services. The provisional benefit period could encourage an employment network to stop services during that period. In addition, the commenter noted that if we provide you with a new ticket when benefits are reinstated, we must cancel the old ticket.

Response: Sections 223(i) and 1631(p) of the Act provide the statutory requirements for paying provisional benefits when you request reinstatement. These final rules include the rules we will use to determine when we can pay you provisional benefits. Under § 404.1592e(d) in these final rules, and consistent with the statutory requirements, we will not pay you a provisional benefit for any month that is after the month you do substantial gainful activity. In addition, under § 416.999c, we will determine your benefits payable for supplemental security income purposes using our normal income rules. Therefore, the disincentive for an employment network to provide services to you during the provisional benefit period is lessened by the fact that if you return to work at a substantial level we will stop paying you provisional benefits. In addition, when you are reinstated, we can provide you a new ticket if you meet the requirements under § 411.125(c). If we provide you with a new ticket, we will terminate your prior ticket under § 411.155(b) and (c)(7). We do not believe that the expedited reinstatement rules provide a disadvantage to your employment network in comparison to the rules for establishing entitlement or eligibility based on the filing of a new application. If your new entitlement or eligibility were based upon your filing a new initial application for benefits, we would terminate your prior ticket under § 411.155(b) and (c)(6). In that case, you would receive a new ticket if you meet the requirements of § 411.125(a) and (b). By providing you a new ticket, you are then able to receive services and your employment network can then receive payments from us based upon the new ticket.

Comment: One commenter suggested that we should discuss how expedited reinstatement, unemployment insurance, and the Workforce Investment Act interrelate. This commenter pointed out that if we determine you cannot be reinstated that there may be other services you can receive.

Response: If we determine that we cannot reinstate you after you have requested expedited reinstatement, under §§ 404.1592f(h) and 416.999d(f), your request for reinstatement serves as your intent to claim benefits. Therefore, you can file a new initial application for benefits. If we determine your benefits cannot be reinstated, that determination is considered an initial determination and you can request review if you are dissatisfied with it. We did not discuss in these final rules other services you may be able to receive if your reinstatement request is denied. Those services can vary depending upon where you live and your particular circumstances and those rules are beyond the scope of these final rules.

We consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were subject to OMB review.

We certify that these final rules would not have a significant economic impact on a substantial number of small entities because they would primarily affect only individuals. Thus an initial regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

The Paperwork Reduction Act (PRA) of 1995 says that no persons are required to respond to a collection of information unless it displays a valid OMB control number. In accordance with the PRA, SSA is providing notice that the Office of Management and Budget has approved the information collection requirements contained in sections 404.1592c, 404.1592d, 416.999a, and 416.999b of these final rules. The OMB Control Number for this collection is 0960-0690, expiring 08/31/2007.

In Title 29 of the Code of Federal Regulations, Parts 1900 to § 1910.999, revised as of July 1, 2005, in § 1910.178, on page 545, remove paragraphs (m)(12)(i), (ii), and (iii).

On September 1, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Special Local Regulations for Marine Events; John H. Kerr Reservoir, Clarksville, VA” in the Federal Register (70 FR 52052). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, spectator craft and other vessels transiting the event area. However, advance notifications will be made to affected waterway users via marine information broadcasts, local radio stations and area newspapers.

On October 1 and 2, 2005, the Virginia Boat Racing Association will sponsor the “Clarksville Hydroplane Challenge”, on the waters of the John H. Kerr Reservoir. The event will consist of approximately 60 inboard hydroplanes racing in heats counter-clockwise around an oval racecourse. A fleet of spectator vessels is expected to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

No comments were received in response to the notice of proposed rulemaking (NPRM) published in the Federal Register . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of John H. Kerr Reservoir. Since no comments were received, no changes to this regulation were made.

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

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this regulation prevents traffic from transiting a portion of the John H. Kerr Reservoir adjacent to Clarksville, Virginia during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this section of the John H. Kerr Reservoir during the event.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 7:30 a.m. to 6:30 p.m. on October 1 and 2, 2005. Although the regulated area will apply to the entire width of the reservoir adjacent to Occoneechee State Park, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area during the event, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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

Regulatory Information

On August 29, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Special Local Regulations for Marine Events; Choptank River, Cambridge, MD” in the Federal Register (70 FR 50997). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, spectator craft and other vessels transiting the event area. Advance notifications will be made to affected waterway users via marine information broadcasts, local radio stations and area newspapers.

On October 1, 2005, the Columbia Triathlon Association will sponsor the “Chesapeakeman Ultra Triathlon”. The swimming segment of the event will consist of approximately 300 swimmers competing across a 2.4-mile course along the Choptank River between the Hyatt Regency Chesapeake Bay Resort Beach and Great Marsh Park, Cambridge, Maryland. The competition will begin at the Hyatt Regency Beach. The participants will swim across to the finish line located at Great Marsh Park, swimming approximately 100 yards off shore, parallel with the shoreline. Approximately 20 support vessels will accompany the swimmers. Due to the need for vessel control during the swimming event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, support craft and other transiting vessels.

No comments were received in response to the notice of proposed rulemaking (NPRM) published in the Federal Register . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Choptank River. Since no comments were received, no changes to this regulation were made.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this regulation will prevent traffic from transiting a segment of the Choptank River adjacent to Cambridge, MD during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notifications will be made to the maritime community via Local Notice to Mariners, marine information broadcasts, area newspapers and local radio stations, so mariners can adjust their plans accordingly. Vessel traffic will be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit this section of the Choptank River during the event.

This rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period, from 6:30 a.m. to 10:30 a.m. on October 1, 2005. Vessels desiring to transit the event area will be able to transit the regulated area at slow speed as the swim progresses, when the Coast Guard Patrol Commander determines it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking.

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.. specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM and delaying its effective date would be contrary to public interest, since there is not sufficient time to publish a proposed rule in advance of the event and immediate action is needed to protect persons and vessels against the hazards associated with a fireworks display from a barge, such as premature detonation or falling burning debris.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This safety zone of short duration is needed to provide for the safety of persons and vessels on the Potomac River.

On October 1, 2005, The Kennedy Center of Performing Arts in Washington, DC will sponsor an event entitled “Festival of China” that will include a fireworks display launched from two barges located on the Potomac River, approximately 1,000 feet upstream of the Theodore Roosevelt Memorial Bridge, in Washington, DC. A fleet of spectator vessels is anticipated for this event. Due to the need for vessel control during the fireworks display, vessel traffic will be restricted to provide for the safety of spectators and transiting vessels.

The purpose of this regulation is to promote maritime safety, and to protect the environment and mariners transiting the area from the potential hazards due to a fireworks display from a barge. This rule establishes a safety zone on the waters of the Potomac River in Washington, DC, approximately 1,000 feet upstream of the Theodore Roosevelt Memorial Bridge, within a radius of 200 yards around two fireworks barges which will be located at position latitude 38°53′ 45.7″ N, longitude 077°03′ 31.6″ W.

The Coast Guard is establishing a safety zone on specified waters of the Potomac River. The safety zone will be in effect from 7:30 p.m. to 10 p.m. on October 1, 2005. This safety zone will protect spectators and mariners transiting the area from the potential hazards associated with a fireworks display launched from a barge on the Potomac River. This rule limits access to the safety zone to those vessels authorized by the Captain of the Port Baltimore. Except for persons or vessels authorized by the Captain of the Port Baltimore, no person or vessel may enter or remain in the zone. The Captain of the Port will notify the maritime community via marine broadcasts of the safety zone.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Potomac River from 7:30 p.m. to 10 p.m. on October 1, 2005. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for two-and-a-half hours, commercial vessel traffic in this area is limited, vessels not constrained by their draft may proceed safely around the safety zone, and the Coast Guard will issue maritime advisories to users of the river before the effective period.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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

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

States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize their changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that Montana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Montana Final authorization to operate its hazardous waste program with the changes described in the authorization application. Montana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian country, and for carrying out those portions of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Montana, including issuing permits, until Montana is authorized to do so.

The effect of this decision is that facilities in Montana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements. Montana has primary enforcement responsibility under its state hazardous waste program for violations of the program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to conduct inspections and require monitoring, tests, analyses, or reports; and enforce RCRA requirements and suspend or revoke permits.

This action does not impose additional requirements on the regulated community because the regulations for which Montana is being authorized are already effective and are not changed by today's action.

EPA did not publish a proposal before today's rule because this action is a routine program change, and we do not expect comments opposing this approval. We are providing an opportunity for public comment at this time. In addition, in the proposed rules section of today's Federal Register , there is a separate document that proposes to authorize the State program changes. If we receive comments opposing this authorization, that document will serve as a proposal to authorize the changes.

If EPA receives comments opposing this authorization, we will withdraw this rule by publishing a notice in the Federal Register before the rule becomes effective. We then will address all public comments in a later Federal Register . You may not have another opportunity to comment. If you want to comment on this action, you must do so at this time.

If we receive comments opposing authorization of only a particular change to the State hazardous waste program, we will withdraw that part of the rule. However, the authorization of program changes that are not opposed by any comments will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective and which part is being withdrawn.

Montana initially received Final authorization on July 11, 1984, effective July 25, 1984 (49 FR 28245) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on July 11, 1984, effective September 25, 1985 (49 FR 28245), January 19, 1994, effective March 21, 1994 (59 FR 02752), and December 26, 2000, effective December 26, 2000 (65 FR 81381).

On July 28, 2005, Montana submitted a final revision application, seeking authorization of program changes in accordance with 40 CFR 271.21.

We now make an immediate final decision, subject to receipt of written comments opposing this action, that Montana's hazardous waste program revision satisfies all of the requirements necessary for Final authorization. Therefore, we grant Montana final authorization for its entire Hazardous Waste Program, excluding the broader-in-scope provisions, as found at Administrative Rules of Montana (ARM), Title 17, Chapter 53, effective March 9, 2005, which incorporated 40 CFR parts 124 and 260 through 268, 270, 273, and 279, effective July 1, 2004. Montana has revised it's entire program using a method that incorporates the Federal Program by reference. This method clearly indicates where the State's requirements are more stringent or broader-in-scope than the Federal requirements. EPA is also approving changes to the State's Availability of Information requirements (AI), as well authorizing the State for the Exceptions to Blending and Burning of Hazardous Waste requirements [RCRA section 3004(q)(2)(A), (r)(2) and (r)(3), as codified in 40 CFR 261.4(a)(12)(i)&(ii)] (Non-Checklist Item BB).

In addition to the changes authorized above, EPA is also approving changes to the State's procedural and enforcement provisions. EPA reviewed these provisions in order to determine the adequacy of Montana's procedural and enforcement authorities to operate the hazardous waste program. In compliance with the requirements of 40 CFR 271.16(a)(3)(ii), Montana has revised its provisions at Montana Code Annotated Section 75-10-418 to obtain criminal penalties for used oil violations (Non-Checklist Item CP), as well as hazardous waste violations. State procedural and enforcement provisions are not authorized by EPA and do not supplant the Federal procedural and enforcement provisions. EPA relies on Federal procedural and enforcement authorities rather than the State analogs to these provisions. Montana's procedures to implement the State's hazardous waste management program requirements continue to operate independently under State law. The following State procedural and enforcement authorities are included as part of this action for informational purposes and are not part of the State's program that operate in lieu of EPA: Montana Code Annotated 2005, sections 2-3-101 et seq., 2-3-221, 2-4-103, 2-4-315, 2-6-101 et seq., 2-15-3501 et seq., 27-30-204, 30-14-402 et seq., 75-10-107, and 75-10-401 et seq.; and Montana Rules of Civil Procedure, Rule 24(a).

The State has not adopted the following Federal rules: 40 CFR 260.20, 260.21, 260.22, and 260.23. (See ARM 17.53.401.) While this does not make the State more stringent, the regulated community must apply to the Regional office and comply with the Federal requirements for petitions, including delisting petitions, addressed by these rules. The State does not adopt any provision associated with the regulation of underground injection; instead, the responsibility for this part of the program is left with EPA (see 17.53.102(3), 17.53.802(2), 17.53.902(18), 17.53.1202(16) and 17.53.1202(18)). The State also has not adopted the permit by rule requirements for ocean disposal barges, because the State is landlocked and the provisions do not apply to the State.

The State has requirements that are more stringent than the Federal rules at (references are to the Administrative Rules of Montana, Title 17): 17.53.502(2), 17.53.602(2), 17.53.602(3), 17.53.603, 17.53.802(5), 17.53.803, 17.53.902(6), 17.53.903 and 17.53.1202(11) require annual rather than biennial reports; 17.53.803(1)(f)(iii) requires the most recent corrective action cost estimate to be submitted in the annual report; 17.53.702(2) through (4), 17.53.704 and 17.53.706 through 708 contain additional requirements for transfer facilities; 17.53.602(7) and (8) require the primary exporter to also file a report with the Montana Department of Environmental Quality; 17.53.602(9) gives both EPA and the State the authority to extend the record retention period; 17.53.1002(1), 17.53.1002(6) and 17.53.1003 prohibit certain wastes, including the dioxin wastes, from being burned in a Boiler and Industrial Furnace (BIF); 17.53.1002(2) and 17.53.1004 require that BIFs also perform background and periodic testing of soils and water in addition to the 40 CFR 266.102 requirements; 17.53.1002(4) does not allow the 40 CFR 266.102(e)(3)(ii) exemption from the particulate standards for BIFs and adds a provision that gives the Montana Department of Environmental Quality the discretion to require a BIF owner/operator submit, in conjunction with the permit application, a plan that will require cessation of hazardous waste burning during prolonged inversion conditions; 17.53.1002(5) requires annual stack emissions in addition to 40 CFR 266.102(e)(8)(i)(C); 17.53.1002(7) does not allow the 40 CFR 266.105(b) waiver from the BIF particulate matter standard; and 17.53.1002(6) and 17.53.1002(8) do not allow the 40 CFR 266.109 low risk exemption and the § 266.110 waiver of the DRE trial burn for boilers; 17.53.1202(10) does not allow the submission of data in lieu of a trial burn as per 40 CFR 270.22(a)(1)(ii) and 270.22(a)(6); 17.53.1202(14) and (15) require that the term of a Boiler and Industrial Furnace permit be only five years and the permit may be modified to assure that the facility is in compliance with the current applicable requirements. The State does not allow interim status for BIFs; thus, does not adopt 40 CFR 266.103 and the language associated with it in 40 CFR part 266 (see 17.53.1002(3)), as well as 40 CFR 270.66(g) (see 17.53.1202(19)).

We also consider the State requirements to be broader-in-scope than the Federal program at: 17.53.111(2), 17.53.112, 17.53.113 and 17.53.1202(5)(l) and (17), because the State requires permit application fees as well as registration fees; 17.53.703 is also broader-in-scope because it requires that transporters obtain a registration from the state. Broader-in-scope requirements are not part of the authorized program, and EPA cannot enforce them. Although a facility must comply with these requirements in accordance with State law, they are not RCRA requirements.

EPA cannot delegate the Federal requirements at 40 CFR part 262, subparts E and H, §§ 268.5, 268.6, 268.42(b), and 268.44(a) through (g). EPA will continue to implement these requirements. Additionally, the State has chosen not to adopt 40 CFR 268.44(h) through (m); the responsibility for these requirements also remains with EPA.

Montana will issue and administer permits for all the provisions for which it is authorized. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that we issued prior to the effective date of this authorization. EPA will transfer any pending permit applications, completed permits, or pertinent file information to Montana within 30 days of this approval. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA and Montana have agreed to joint permitting and enforcement for those HSWA requirements for which Montana is not yet authorized.

Montana is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to:

A. Lands within the exterior boundaries of the following Indian Reservations located within or abutting the State of Montana:

a. Blackfeet Indian Reservation.

b. Crow Tribe of Montana Indian Reservation.

c. Flathead Indian Reservation.

d. Fort Belknap Indian Reservation.

e. Fort Peck Indian Reservation.

f. Northern Cheyenne Indian Reservation.

g. Rocky Boy's Indian Reservation.

B. Any land held in trust by the U.S. for an Indian tribe, and

C. Any other land, whether on or off a reservation that qualifies as Indian country within the meaning of 18 U.S.C. 1151.

Therefore, this program revision does not extend to Indian country where EPA will continue to implement and administer the RCRA program in these lands.

Codification is the process of placing the State's authorized hazardous waste program statutes and regulations into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart BB for this authorization of Montana's program until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. 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. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective November 29, 2005.

EPA Region 2 announces the deletion of the Batavia Landfill Superfund Site from the NPL. The EPA maintains the NPL as the list of those sites that appear to present a significant risk to public health, welfare, or the environment. As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at the deleted site warrant such action.

EPA considers this action to be noncontroversial and routine, and therefore, EPA is taking it without prior publication of a Notice of Intent to Delete. This action will be effective November 29, 2005 unless EPA receives significant adverse comments by October 31, 2005 on this action or the parallel Notice of Intent to Delete published in the Notice section of today's Federal Register . If significant adverse comments are received within the 30-day public comment period, EPA Region 2 will publish a timely withdrawal of this Direct Final Deletion before the effective date of the deletion and the deletion will not take effect. EPA will, if appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Batavia Landfill Superfund Site and demonstrates how it meets the deletion criteria.

Section 300.425(e) of the NCP provides that sites may be deleted from the NPL where no further response is appropriate. In making this determination, EPA, in consultation with the State, shall consider whether any of the following criteria have been met:

i. Responsible parties or other parties have implemented all appropriate response actions required;

ii. All appropriate Fund-financed responses under CERCLA have been implemented, and no further action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, implementing remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9261(c) requires that a subsequent review of the site be conducted at least every five years after initiation of the remedial action at the deleted site to ensure that the action remains protective of human health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Based upon Section 300.425(e)(3) of the NCP, whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. EPA proposes to delete this Site because potentially responsible parties have implemented all appropriate response actions.

The following procedures were used for the intended deletion of this Site:

(1) The Site was listed on the NPL in September 1983.

(2) In August 1984, EPA entered into an Administrative Order on Consent with NL Industries for the performance of the Remedial Investigation/Feasibility Study (RI/FS) for the Site.

(3) The RI Report was completed in 1992, the FS Report in 1994.

(4) On March 31, 1993, EPA signed a Record of Decision (ROD) selecting an interim remedy for the Site which required the extension of the municipal water supply system to residents affected or potentially affected by the Site.

(5) On September 21, 1993, EPA issued a Unilateral Administrative Order to the Potentially Responsible Parties (PRPs) directing them to implement the interim remedy.

(6) On January 30, 1996, EPA formally approved the completion of the extension of the municipal waterline system and connection of the homes.

(7) On June 6, 1995, EPA issued a ROD which selected a final remedy for the Site which included engineered and institutional controls.

(8) The first Five-Year Review was signed by EPA on June 30, 2000.

(9) On July 10, 2003, EPA determined that the engineered controls had been constructed. A final Remedial Action Report was approved on September 26, 2003.

(10) In June 2005, institutional controls were recorded with the Genesee County Register of Deeds.

(11) The EPA consulted with the NYSDEC on the deletion of this Site and NYSDEC concurred with the deletion of the Site from the NPL on September 13, 2005.

(12) Concurrently with the publication of this Direct Final Deletion, a parallel Notice of Intent to Delete has been published today in the Notice section of the Federal Register . Notices are also being published in local newspapers and appropriate notice is being provided to federal, state, and local government officials and other interested parties.

(13) The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

If no significant adverse comments are received, the Site will be deleted. If significant adverse comments are received within the 30-day public comment period on this action, EPA will publish a timely notice of withdrawal of this deletion before its effective date. EPA will prepare, if appropriate, a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take appropriate enforcement actions.

The following summary provides a brief description and actions taken at the Batavia Landfill Superfund Site which provides the Agency's rationale for recommending deletion of the Site from the NPL.

The Batavia Landfill Superfund Site (the Site or the Landfill) is located in the Town of Batavia, Genesee County, approximately three miles west-northwest of the City of Batavia, New York. The Site is approximately 35 acres in area and is bounded to the north and portions of the east by the Galloway Swamp, to the east by the Town's former Sanitary Landfill (now closed), to the south by Harloff Road (the New York State Thruway is approximately 200 feet south of the Landfill), and to the west by vacant property. The Town of Batavia owns the Site and the adjoining sanitary landfill to the east.

The Landfill accepted wastes, including industrial wastes, for on-site disposal from 1968 until 1980, when the NYSDEC declared the property an open dump based on noncompliance with surface water criteria (40 CFR Part 257). Poor housekeeping practices and the disposal of industrial and hazardous wastes resulted in the closure of the Landfill.

During the active years of waste management approximately 800,000 cubic yards of industrial wastes have been disposited at the Site. In December 1982, Fred C. Hart Associates, under contract with EPA, conducted a groundwater sampling survey in the area of the Site. Sampling data from on-site monitoring wells revealed the presence of hazardous organic and inorganic chemical constituents (including methylene chloride, 1,1 dichloroethane, and barium) which exceeded New York State and Federal drinking water standards.

On December 20, 1982, the Site was proposed for inclusion on the NPL and was added to the NPL by publication in the Federal Register on September 8, 1983 (48 FR 40658).

On August 9, 1984, EPA entered into an Administrative Order on Consent (AOC) with NL Industries, a Potentially Responsible Party (PRP), for the performance of a RI/FS at the Site.

A residential well program conducted by the New York State Department of Health in 1992 at homes in close proximity to the Site revealed levels of contaminants in the wells above the Federal Maximum Contaminant Levels. A subsequent risk assessment performed by EPA revealed that the continued ingestion of the groundwater posed a significant endangerment to the area residents.

On March 31, 1993, EPA signed a Record of Decision (ROD) selecting an interim remedy for the Site which required the extension of the municipal water supply system to residents affected or potentially affected by the Site.

On September 21, 1993, EPA issued a Unilateral Administrative Order to the PRPs directing them to implement the interim remedy outlined in the 1993 ROD. On January 30, 1996, EPA approved the completion of the replacement and/or retrofitting of residential groundwater well piping systems with new piping and appurtenances connecting each home to the waterline.

On June 6, 1995, EPA selected the final remedy: (a) The excavation of approximately 50,000 cubic yards of contaminated soil from the northern area of the Landfill and consolidation of these materials under a landfill cap in the southern area of the Landfill; (b) excavation of approximately 150 drums from the southern area of the Landfill and their off-site treatment and disposal; (c) construction of a cap over the southern region of the Landfill; (d) the restoration of the surrounding wetlands at the Landfill impacted by past waste disposal activities; and, (e) establishment of institutional controls to preclude certain uses of the property.

In September 1995, EPA issued an AOC for the performance of the remedial design (RD) for the site remedy. The RD was completed in December 1999. The site remedy was modified on September 16, 1999 in an Explanation of Significant Difference (ESD) which called for the excavation and removal of 126,000 cubic yards of contaminated soils from the northern and central areas of the Site, an increase of 76,000 cubic yards of wastes from the previous estimate.

The final landfill cap, constructed in the southern area of the Site, covers an approximate area of 15.5 acres and is consistent with New York State hazardous waste management regulations. Approximately 210,000 cubic yards of excavated wastes from the northern, central and wetland areas of the Site were consolidated under the southern area landfill cap. The landfill cap was constructed with 18 inches of compacted clay, a drainage and leachate collection system, a gas venting system and a 24-inch barrier protection layer of soil and 6 inches of topsoil suitable to maintain vegetative growth.

A perimeter chain-linked fence around the Site, including three access gates, has been installed. Approximately seven acres of waste-impacted wetlands (including some areas of standing water which support a submergent vegetative community) were remediated and restored during the conclusion of remedial construction activities in September and October 2002.

Institutional controls have been put in place at the Site to restrict future activities at the Site that may negatively impact the effectiveness of the implemented site remedy or threaten human health and the environment. These site restrictions include a ban on the construction of drinking water wells and new building structures that may impede the effectiveness of the landfill cap systems.

Implementation of the interim and final remedies have utilized permanent solutions in the effective short-term and long-term abatement of the human health and ecological risks posed by the Site. The final remedy is reducing the toxicity, mobility, and volume of contaminants by reducing infiltration through the landfilled wastes and collecting and treating the leachate. In addition, the final remedy also involved the remediation and restoration of seven acres of wetlands at the Site.

EPA has determined that all appropriate response measures under the Comprehensive Environmental Response, Compensation, and Liability Act have been implemented and that no further cleanup is required. The Site poses no significant threat to public health or the environment. Consequently, this Site no longer needs to be listed on the NPL; however, this decision does not preclude future actions under Superfund should they become necessary.

A Remedial Action Work Plan (RAWP) for the implementation of long-term operation and maintenance for the landfill cap systems is in place. The Town of Batavia is required to manage the required operation and maintenance (O&M) activities in accordance with the RAWP. Required O&M activities include the long-term implementation of a semi-annual groundwater monitoring program, periodic Site inspections, and regular landfill cap maintenance activities. The inspections are required to ensure and maintain the operational effectiveness and structural integrity of the Site remedy to protect human health and the environment.

Institutional controls consisting of an easement and deed restriction limiting access to the Site and preventing the use of contaminated water as a drinking source were filed with the Genesee County Register of Deeds on June 10, 2005.

Public participation activities for this Site have been satisfied as required by CERCLA Section 113(k), 42 U.S.C. 9613(k), and, CERCLA Section 117,42 U.S.C. 9617. The RI/FS and the 1993 and 1995 RODs were both subject to the public review process. All documents and information which EPA relied on or considered in reaching the conclusion that this Site can be deleted from the NPL are available for the public to review at the information repositories.

The final remedy implemented at this Site results in contaminants remaining at the Site above levels that allow for unlimited use and unrestricted exposure. In accordance with CERCLA Section 121(c), EPA and/or NYSDEC will conduct a review of this remedy no less often than every five years. A first Five-Year Review Report for the Site was completed in June 2000. EPA has determined that the remedies protect public health and the environment and that they function as intended by the decision documents. All construction activities for the Site required by the final ROD were completed in July 2003. A second Five-Year Review was completed in September 2005.

One of the three criteria for site deletion specifies that a site may be deleted from the NPL if “responsible parties or others parties have implemented all appropriate response actions required.” [ 40 CFR 300.425(e)(1) (i)]. EPA, with concurrence of the State of New York, through the NYSDEC, believes that this criterion for deletion has been met and therefore, EPA is deleting this Site from the NPL.

EPA Region 8 is publishing this direct final notice of partial deletion of the Jacobs Smelter Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites or areas within sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication of a notice of intent to partially delete. This action will be effective November 29, 2005 unless EPA receives adverse comments by October 31, 2005 on this notice or the parallel notice of intent to partially delete published in the “Proposed Rules” section of today's Federal Register . If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the partial deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting, or partially deleting, sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the UPRR right-of-way property that EPA intends to delete from the Jacobs Smelter Superfund Site and demonstrates how it meets the partial deletion criteria. Section V discusses EPA's action to partially delete the site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete, or partially delete, a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Section 300.425(e)(1)(i): Responsible parties or other persons have implemented all appropriate response actions required;

ii. Section 300.425(e)(1)(ii): All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response action under CERCLA has been implemented and no further response action by responsible parties is appropriate; or

iii. Section 300.425(e)(1)(iii): The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is partially deleted from the NPL, if hazardous substances, pollutants or contaminants remain in place at the deleted portion of the site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c), requires that a subsequent review be conducted at least every five years after the initiation of the remedial action at the deleted portion of the site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate or require further remedial actions. Whenever there is a significant release from a site (or portion thereof) deleted from the NPL, the deleted area or site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the partial deletion:

(1) The EPA consulted with the State of Utah on the partial deletion of the site from the NPL prior to developing this direct final notice of partial deletion.

(2) The State of Utah concurred with the partial deletion of the site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of the availability of the parallel notice of intent to partially delete was published today in the “Proposed Rules” section of the Federal Register , is being published in a major local newspaper of general circulation at or near the site and is being distributed to appropriate federal, state and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to partially delete the site from the NPL.

(4) The EPA placed copies of documents supporting the deletion of these properties in the site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of partial deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion or partial deletion of a site from the NPL does not itself create, alter or revoke any individual's rights or obligations. Deletion or partial deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions. Section 300.425(e)(3) of the NCP governs partial deletion of a site from the NPL in the same manner.

While EPA does not believe that any future response action within Operable Unit 3 will be needed, if future conditions warrant such action, this deleted area will remain eligible for future response actions. Furthermore, this partial deletion does not alter the status of any remaining portions of the Jacobs Smelter Superfund Site, which are not proposed for deletion and remain on the NPL. The residential portion of Operable Unit 1 was deleted from the NPL in 2001.

The following information provides EPA's rationale for deleting the portion of the site referred to above from the NPL.

The Jacobs Smelter Superfund Site Operable Unit 3 is a long irregularly shaped property consisting of the Union Pacific Railroad right-of-way, 1,625 feet in length and varying in width from 50 to 450 feet with an average width of 200 feet. An active mainline railroad bisects this 9-acre site from north to south. One of the major roads, Silver Avenue, crosses the right-of-way from east to west. The site is relatively level and vegetated with native grasses and scrubby trees. Several older concrete foundations of removed buildings and one possible water tower base are evident. The only other onsite structures are two small signal houses.

The Stockton Yard (OU3) is located within the Jacobs Smelter Superfund Site. Several mining and smelting facilities were constructed in and near the town of Stockton in the early 1870's. The Jacobs Smelter was located in the town of Stockton near the current location of the Stockton Yard. Contamination on OU3 is likely the result of sediments entrained in process water that was allowed to flow down-gradient across the rail road right of way as well as spillage from an ore-loading facility that was built for the transportation of ores to other mills and smelters.

The railroad property was cleaned up in 1999. UPRR, under an agreement with the EPA, removed all debris and large vegetation (bushes and trees), placed a 16-inch soil cover over the contaminated soils in their right-of-way, fertilized the soil cap, and seeded with a mixture of indigenous grass seed.

Concrete foundations onsite were left in place. Following removal of vegetation from the site, a limited amount of grading was performed to smooth out uneven areas of the site. In general, soil surfaces were kept moist to reduce the potential for spreading contaminated soil and also to ease handling and placement of material.

UPRR built 6' fences along the edge of Silver Avenue and Plaza Street. A 16-ft-wide gravel access road was also constructed along the length of the east and west sides of the railroad track between the railroad ballast and the soil cap. The road was developed using a 4-inch layer of crushed rock.

Arsenic is a human carcinogen. Arsenic can be acutely and chronically poisonous and can be fatal if ingested or inhaled in sufficient quantities by humans, livestock and wildlife. Arsenic compounds are absorbed into the body primarily through inhalation or ingestion.

Lead is a cumulative poison which can cause neurologic, kidney and blood cell damage in humans. Some lead compounds are also animal carcinogens adversely affecting the lungs and kidneys. Children under the age of seven years are especially sensitive to the effects of lead. Lead carbonate, which is the type of lead found at the site, is very bio-available. Bio-availability is an indication of how easily lead is absorbed into the body, thus lead at the site is readily absorbed.

These metals are hazardous substances, as defined by section 101 (14) of CERCLA. They appear to have been released into the soils along the railroad track by historic smelting activities and spread through the community by water drainage and possibly aerial deposition.

Because arsenic contamination is found along the railroad track in areas that are surrounded by residences, there is also a potential for contaminated soil to be wind-blown and dust-sized particles to be transported by wind and human activities into yards and into homes. Also, children play along the tracks.

UDEQ collected soil and sediment samples from the Stockton area in July of 1997. The analysis of samples from the area at and around Jacobs Smelter detected arsenic and lead levels as high as 6,550 parts per million (ppm) and 68,400 ppm respectively.

Sampling on the UPRR property revealed high concentrations of lead in several lots east of the railroad tracks. Concentrations of lead ranged as high as 4,800 ppm near the edge of a suspected settling pond to 12,000 ppm near an area described as an old railroad loading dock.

In August 1998, EPA Region 8 conducted a screening investigation of site (OU3) surface soils to evaluate potential lead and arsenic contamination. This investigation identified lead in soils at concentrations ranging from 837 to 12,000 parts per million (ppm). Due to its collocation with the lead, an analysis for arsenic was also conducted and results appeared correlated. The PRP Removal Action Memorandum of February 2, 1999 identified both lead and arsenic as contaminants of concern.

In February 1999 further investigation was conducted on the east side of the Stockton Yard railroad lines to delineate lead contamination. The site was broken up into 20 sampling zones; 2 to 4 samples were collected within each zone and composited. Surface soil samples collected from the 20 zones ranged from 14 to 23,902 ppm total lead.

On June 11, 1999 additional investigations of lead in surface soils on the west side of the railroad lines were conducted. This area was divided into 11 sample zones, using the same grid configuration as the earlier work. The samples were collected as 3- to 4-point composites in 0-6” intervals using the same protocol as outlined in the February 24, 1999 Site Investigation and Remedial Alternatives Report. Total lead concentrations ranged from 164 to 1,958 ppm.

The industrial action level set by the EPA was 1,200 ppm total lead. Based on sampling events, soils exceeding this 1,200-ppm cleanup level encompassed approximately 3.6 acres on the east side of the railroad tracks and approximately 0.70 acre on the west side of the tracks. In the February 1999 Site Investigation and Remedial Alternatives Report, cost estimates were presented for several remedial alternatives. Based on this information, EPA and UDEQ selected soil cover as the preferred alternative for the Stockton Yard.

The purpose of the Enforcement Action Memorandum was to document the selected PRP Removal Action. The selected response action was to confine the affected soil beneath a soil cover and to fence off the area to reduce access by the public. The objectives were to preclude direct exposures and to reduce the potential for offsite migration of affected soil through air or water borne pathways.

Site preparation included the removal of large vegetation (e.g. bushes and trees) and debris (i.e. boulders, concrete chunks, trash) from the areas to be capped. Vegetation and debris were disposed of in the Tooele County Landfill. The concrete foundations remained on site.

The UPRR developed a plan of action for soils in excess of 1,200 ppm lead, including 3.6 acres on the east side and .70 on the west of the 9 acres in the right-of-way described in the agreement. That soil, adjacent to the track ballast, was compacted and capped with 12″ of clean soil (approximately 7,550 yards) and 4″ of top soil (approximately 2,300 yards). UPRR sowed the remediated area with a combination of wild rye, sagebrush and two grasses which were recommended for the local altitude and weather pattern. UPRR also built 6′ high chain link fences along the edge of Silver Avenue and Plaza Street.

In agreement with the EPA and UDEQ, UPRR filed in Tooele County a Declaration of Restrictions that limits the future use of the site.

Cleanup standards for Operable Unit 3 were based on the IEUBK model data that showed elevated lead concentrations exceeded EPA's criteria. EPA and UDEQ selected soil cover as the preferred alternative for the Stockton Yard. The soil cap was placed over sections of the site that contained lead concentrations greater than 1,200 ppm.

EPA established an Information Repository containing the Administrative Record and other information about the site at the Tooele City Public Library, 128 West Vine Street, Tooele, Utah. Public interviews were conducted, ties with local officials were established, and an avenue created to address local questions and concerns through the appointment of a Community Involvement Coordinator.

Numerous community meetings were held to inform and invite public comment on site-wide remedies, and discussions included the cleanup of the UPRR right-of-way in January, March, May and June of 1999.

Public participation activities have been satisfied as required in sections 113(k), and 117 of CERCLA, 42 U.S.C. 9613(k) and 9617. Documents in the deletion docket, which EPA relied on for recommendation of the partial deletion from the NPL, are available to the public in the information repositories.

The EPA, with concurrence of the State of Utah, has determined that all appropriate responses under CERCLA for the referenced property have been completed and that no further response actions under CERCLA are necessary.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective November 29, 2005 unless EPA receives adverse comments by October 31, 2005 on a parallel notice of intent to delete published in the “Proposed Rules” section of today's Federal Register . If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the deletion and it will not take effect. EPA will simultaneously prepare a response to comments and continue with the partial deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

In FR Doc. 05-15406 (70 FR 47278), the final rule entitled “Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2006 Rates” (hereinafter referred to as the FY 2006 final rule), there were a number of typographical and technical errors that are identified and corrected in the “Correction of Errors” section (section III. of this notice). The provisions of this correction notice are effective as if they had been included in the FY 2006 final rule. Accordingly, the corrections are effective October 1, 2005.

On page 47292, in our preamble discussion regarding cardiac catheterizations for DRGs 535 and 536, we stated that we are removing code 37.26 from DRGs 535 and 536 and then erroneously stated that we are adding code 37.26 to DRG 515. Therefore, we are revising this discussion by deleting the phrase “and adding the code in DRG 515.” (See item 2 of section III.A. of this notice.)

On page 47312, in our preamble discussion regarding the “Tobacco Use Disorder Edit”, we stated the incorrect Medicare code editor (MCE) edit to which we added code 305.1. Although our national coverage determination on smoking cessation counseling services provides that we never cover tobacco cessation services when code 305.1 is reported as the principal diagnosis, we erroneously stated that code 305.1 would be added to the MCE edit “Questionable Admission—Principal Diagnosis Only.” Therefore, we are revising this discussion by replacing the incorrect MCE edit, “Questionable Admission—Principal Diagnosis Only,” with the correct MCE edit, “Unacceptable Principal Diagnosis.” (See item 3 of section III.A. of this notice.)

On page 47444, in our preamble discussion regarding Medicare Geographic Reclassification Review Board (MGCRB) reclassification for urban hospitals, we made typographical errors in our citations to the regulations text. In addition, on pages 47486 and 47487, our amendment to the regulations text contained technical errors. In this notice, we are revising the relevant preamble and regulations text. (See item 7 of section III.A. and items 1 and 2a of section III.B. of this notice.)

On page 47445, we made incorrect references in our preamble discussion regarding the date by which the MGCRB has to make its reclassification decisions. We are revising this discussion to clarify that the MGCRB has 180 days in which to make its reclassification decision. (See item 8 of section III.A. of this notice.)

On pages 47477 and 47478, in the column heading of the chart displaying information regarding diagnosis-related groups (DRGs) that recognize major cardiovascular conditions (MCVs), we erroneously included new DRGs whose titles include “without MCV.” We are revising this heading to include only those DRGs that recognize MCVs. (See item 10 of section III.A. of this notice.)

On pages 47589 and 47596, in Table 4A, we made errors in the calculation of the wage indexes and geographic adjustment factors for 2 core-based statistical areas (CBSAs). Accordingly, we are correcting this table to include the correct wage indexes and geographic adjustment factors (GAFs) for these CBSAs. We are also correcting the wage index values listed in Table 2 for the affected providers. (See items 1 and 2 of section III.C. of this notice.) In addition, the wage index data for a provider were erroneously omitted from the wage index calculation. This error affects hospitals geographically located in and reclassifying to the Houston-Sugar Land-Baytown, TX CBSA. Accordingly, we are revising Tables 2, 4A, and 4C to reflect the correct information. (See items 1, 2, and 4 of section III.C. of this notice.) Similarly, another provider's wage data were erroneously omitted from the wage index calculation that affects hospitals geographically located in and reclassifying to the Nashville-Davidson-Murfreesboro, TN CBSA. Therefore, we are including the corrected data in Tables 2, 4A, and 4C. (See items 1, 2, and 4 of section III.C. of this notice.)

On page 47604 on Table 4B we made an error in the calculation of the wage index and geographic adjustment factor for rural Washington. (See item 3 of section III.C. of this notice.) Therefore, we are correcting the wage index and GAF values listed for the 5 CBSAs in Table 4A that receive the Washington rural floor and we are also correcting the wage index values listed in Table 2 for the affected providers (See items 1 and 2 of section III.C. of this notice).

On page 47611, in Table 4J, we made a number of typographical errors in a group of the provider numbers listed. In this notice, we are correcting these errors. (See item 5 of section III.C. of this notice.)

On page 47675, in Table 9A, we inadvertently reclassified a provider to the incorrect CBSA. In addition, in Table 2, we also inadvertently listed the incorrect wage index for this provider. Accordingly, we are revising both of these tables to reflect the correct information for this provider. (See items 1 and 8 of section III.C. of this notice).

We are also correcting typographical, formatting or other errors that appear on other pages of the FY 2006 final rule.

In FR Doc. 05-15406 (70 FR 47278), we are making the following corrections:

1. On page 47289, third column, first full paragraph, line 34 the figure “111” is corrected to read “115”.

2. On page 47292, first column, first partial paragraph, lines 1 and 2, the phrase “and adding the code in DRG 515” is deleted.

3. On page 47312, second column, second full paragraph, lines 26 and 27 the phrase “Questionable Admission-Principal Diagnosis Only” is corrected to read “Unacceptable Principal Diagnosis”.

4. On page 47344,

a. Second column, first partial paragraph, line 1, the word “criteria” is corrected to read “criterion”; and

b. Third column, first full paragraph, line 1, the word “INFUSETM” is corrected to read “INFUSE”.

5. On page 47350, third column,

a. First partial paragraph, last line, the phrase “Endovascular Stent Graft.” is corrected to read “Endovascular Stent Graft.)”; and

b. First full paragraph, line 48, the phrase “could not longer be” is corrected to read “could no longer be”.

6. On page 47418, second column, first full paragraph, line 11, the date “October 1, 2006” is corrected to read “October 1, 2005”.

7. On page 47444, first column, third full paragraph,

a. Line 21, the phrase “will longer be” is corrected to read “will no longer be”;

b. Line 30, the citation “§ 412.230(a)(5)(iv)” is corrected to read “§ 412.230(a)(5)(iii)”; and c. Line 34, the citation “§ 412.230(a)(5)(iv)” is corrected to read “§ 412.230(a)(5)(iii)”.

8. On page 47445, second column, first paragraph,

a. Line 25, the date “February 1” is corrected to read “180 days from the September 1 application due date”; and

b. Line 55, the date “February 1, 2006” is corrected to read “180 days from the September 1 application due date”.

9. On page 47446, first column, third paragraph, line 22, the citation “§ 412.230(d)(2)(iv)” is corrected to read “§ 412.230(d)(2)(iii)”.

10. On pages 47477 and 47478, in the chart, the fourth column, the header row, the heading “DRGs 547, 548, 549, 550, 553, 554, 555, 556, 557, and 558” is corrected to read “DRGs 547, 549, 553, 555, and 557”.

1. On pages 47510, 47524, 47531, 47552, 47561 through 47568, 47570 and 47571, in Table 2—Hospital Case-Mix Indexes for Discharges Occurring in Federal Fiscal Year 2004; Hospital Wage Indexes for Federal Fiscal Year 2006; Hospital Average Hourly Wages for Federal Fiscal Years 2004 (2000 Wage Data), 2005 (2001 Wage Data), and 2006 (2002 Wage Data); Wage Indexes and 3-Year Average of Hospital Average Hourly Wages, for the listed provider numbers, the FY 2006 Wage Index (column 3) is corrected to read as follows:

2. On pages 47589, 47591 through 47594, 47596, and 47602, in Table 4A—Wage Index and Capital Geographic Adjustment Factor (GAF) for Urban Areas by CBSA, for the listed CBSA codes, the wage index (column 3) and GAF (column 4) are corrected to read as follows:

3. On page 47604, in Table 4B—Wage Index and Capital Geographic Adjustment (GAF) for Rural Areas by CBSA, for the listed CBSA code, the wage index (column 3) and GAF (column 4) are corrected to read as follows:

4. On pages 47605 and 47606, in Table 4C—Wage Index and Capital Geographic Adjustment Factor (GAF) for Hospitals that are Reclassified by CBSA, for the listed CBSA codes, the wage index (column 3) and GAF (column 4) are corrected or added to read as follows:

5. On page 47611, in Table 4J—Out-Migration Adjustment—FY 2006, the 23rd through 45th entries, the entries in the Published Provider No. column in the chart below are corrected in the Corrected Provider No. column to read as follows:

6. On page 47619, in Table 5—List of Diagnosis-Related Groups, Relative Weighting Factors, and Geometric and Arithmetic Mean Length of Stay (LOS), the 11th and 12th entries, the DRG title (column 6) is corrected to read as follows:

7. On page 47638, in Table 6E—Revised Diagnosis Code Titles, the first entry, the CC (column 3) is corrected to read as follows:

8. On page 47675, in Table 9A—Hospital Reclassifications and Redesignations by Individual Hospital and CBSA—FY 2006, first set of entries, the 36th entry, the Reclassified CBSA is corrected to read as follows:

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. We can also waive the 30-day delay in effective date under the APA (5 U.S.C. 553(d)) when there is good cause to do so and we publish in the rule an explanation of our good cause.

The policies and payment methodology expressed in the FY 2006 final rule have previously been subjected to notice and comment procedures. This correction notice merely corrects typographical and technical errors in the preamble, regulations text, and addendum of the FY 2006 final rule and does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correction notice is intended to ensure that the FY 2006 final rule accurately reflects the policies adopted in the final rule. Therefore, we find that undertaking further notice and comment procedures to incorporate these corrections into the final rule is unnecessary and contrary to the public interest.

For the same reasons, we are also waiving the 30-day delay in effective date for this correction notice. We believe that it is in the public interest to ensure that the FY 2006 final rule accurately represents our prospective payment methodology, payment rates, and policies. Thus delaying the effective date of these corrections would be contrary to the public interest. Therefore, we also find good cause to waive the 30-day delay in effective date.

In FR Doc. 05-15221, (70 FR 45026), the final rule entitled “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities for FY 2006” (hereinafter referred to as the FY 2006 final rule), there were a number of typographical and technical errors that are identified and corrected in section III. “Correction of Errors” below. The provisions of this correction notice are effective as if they had been included in the FY 2006 final rule. Accordingly, the corrections are effective on October 1, 2005.

On pages 45046 and 45047, in the preamble discussion of the SNF market basket index, we inadvertently included incorrect values in the column labeled “Relative importance, labor-related, FY 2005 (97 index).” Therefore, we are revising the second column in Table 11 (“Labor-Related Relative Importance, FY 2005 and FY 2006”) to include the correct values for the labor share estimate for FY 2005 based on the 2nd quarter 2004 projection. (See item 1 of section III.A of this notice.)

On page 45055, we made a technical error in the regulations text of title 42, part 411. In this paragraph, we inadvertently excluded the updated statutory authority citation for this part. As revised by FR Doc. 05-1321 entitled “Medicare Program; Medicare Prescription Drug Benefit” (70 FR 4525, January 28, 2005), in this notice we are correcting the regulations text to include Secs. 1102, 1860D-1 through D-42, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-152, and 1395hh). Accordingly, we are now republishing the corrected statutory authority citation for part 411, as revised by FR Doc. 05-1321. (See item 1 of section III. B. of this notice.)

Also on page 45055, in our revisions to two different sections of the regulations text in part 424 of the FY 2006 final rule, we inadvertently omitted a subpart heading. Specifically, revised § 424.3 and § 424.20 were both displayed as being included within subpart B of part 424 (“Certification and Plan of Treatment Requirements”). In fact, only § 424.20 is included within that subpart, while § 424.3 is included within subpart A (“General Provisions”). (See items 2 and 3 of section III. B. of this notice.)

Wage index data for two providers were erroneously omitted from the wage index calculation. This affected the wage index determination for the Houston-Sugar Land-Baytown, TX CBSA and the Nashville-Davidson-Murfreesboro, TN CBSA. Accordingly, we are revising Table 8 and Table A to reflect the correct information. In addition, both Table 8 and Table A contained a number of technical and typographical errors. Therefore, we are including the corrected data in Table 8 and Table A. (See items 1 and 2 of section III.C. of this notice.)

In FR Doc. 05-15221 of August 4, 2005 (70 FR 45026), we are making the following corrections:

1. On pages 45046 and 45047, in Table 11—Labor-Related Relative Importance, FY 2005 is corrected to read as follows:

1. On pages 45065, 45069, and 45070 in Table 8.—(“FY 2006 Wage Index For Urban Areas Based On CBSA Labor Market Areas”) the entries for the Urban area and Wage index are corrected to read as follows:

2. On pages 45080 through 45121, the following entries identified in Table A.—(“FY 2006 SNF PPS Transition Wage Index”) are corrected to read as follows:

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a notice such as this take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). We also ordinarily provide a 30-day delay in the effective date of the provisions of a notice in accordance with section 553(d) of the APA (5 U.S.C. 553(d)). However, we can waive both the notice and comment procedure and the 30-day delay in effective date if the Secretary finds, for good cause, that a 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.

We find it unnecessary to undertake notice and comment rulemaking because this notice merely provides technical and typographical corrections to the regulations. We are not making substantive changes to our payment methodologies or policies, but rather, are simply implementing correctly the payment methodologies and policies that we previously proposed, received comments on, and subsequently finalized. The public has already had the opportunity to comment on the payment methodology and policies being used to calculate wage indexes. In addition, this correction notice is intended to ensure that the FY 2006 SNF PPS final rule accurately reflects the payment methodologies and policies adopted in the final rule. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections into the final rule is unnecessary and contrary to the public interest.

Further, we believe a delayed effective date is unnecessary because this correction notice merely corrects inadvertent technical and typographical errors. The changes noted above do not make any substantive changes to the SNF PPS payment methodologies or policies. Moreover, we regard imposing a delay in the effective date as being contrary to the public interest. We believe that it is in the public interest for providers to receive appropriate SNF PPS payments in as timely a manner as possible and to ensure that the FY 2006 SNF PPS final rule accurately reflects our payment methodologies, payment rates, and policies. Therefore, we find good cause to waive notice and comment procedures, as well as the 30-day delay in effective date.

In the FY 2006 IRF PPS final rule (70 FR 47880), there were a number of technical errors that are identified and corrected in the “Correction of Errors” section below. The provisions in this correction notice are effective as if they had been included in the FY 2006 IRF PPS final rule (70 FR 47880). Accordingly, the corrections are effective for the payments for discharges occurring on or after October 1, 2005 and on or before September 30, 2006.

Most of the technical errors identified and corrected in the “Correction of Errors” section below originate from the same error, an inadvertent inclusion of incorrect data for four inpatient rehabilitation facilities (IRFs) in the analysis for the FY 2006 final rule (70 FR 47880). In the analysis for the FY 2006 final rule (70 FR 47880), we inadvertently and incorrectly neglected to apply any rural adjustment amount to estimated payments for four IRFs in our analysis sample that should have received a portion of the rural adjustment under the IRF hold harmless policy (as described below). When we reran the data analysis with the correct portion of the rural adjustment applied to payments for these four facilities, it resulted in the technical changes to the majority of the numbers described in the “Correction of Errors” section below.

According to the hold harmless policy described in the FY 2006 final rule (70 FR 47880, 47924), those existing IRFs that meet the definition in 42 CFR 412.602 as rural in FY 2005 and will become urban under the FY 2006 Core-Based Statistical Area (CBSA)-based designations will qualify, under the hold harmless policy, for an adjustment to their payments in FY 2006 equal to all or some portion of two-thirds of the 19.14 percent rural adjustment effective in FY 2005 (as described below).

The hold harmless policy for the IRF PPS rural adjustment, as described in the FY 2006 final rule (70 FR 47880, 47924), results in two groups of IRFs that are within the scope of the policy. Both groups must meet the hold harmless criteria (that is, classified as rural in FY 2005 and redesignated as urban under the CBSA-based definitions in FY 2006). The first group of IRFs are those that meet the hold harmless criteria and that we estimate will experience lower payments in FY 2006 (with the hold harmless policy) than they otherwise would have if instead they had been paid under their rural designation in FY 2006, including the FY 2005 rural adjustment of 19.14 percent (as described in step 2 below). This first group of IRFs will receive an adjustment to payments in FY 2006 equal to a full two-thirds of the FY 2005 rural adjustment of 19.14 percent. The second group of IRFs meets the hold harmless criteria (described above), and we estimate that they will experience higher payments (with the hold harmless policy) than they otherwise would have if instead they had been paid under their rural designation in FY 2006, including the FY 2005 rural adjustment of 19.14 percent (as described in step 2 below). As discussed in the final rule (70 FR 47880, 47924), our intent of the hold harmless policy is to mitigate the negative payment effect upon an existing rural facility that is redesignated as an urban facility (effective FY 2006), but our intent is not for an IRF that comes under the hold harmless policy to realize greater payments as a result of the policy than the IRF would have if instead the IRF had been paid under its rural designation in FY 2006, including the FY 2005 rural adjustment of 19.14 percent. Therefore, under the hold harmless policy as described in the final rule (70 FR 47880, 47924), the second group of IRFs will receive a portion of the two-thirds of the 19.14 percent rural adjustment (as described further below), rather than the full adjustment.

The analysis for the FY 2006 final rule (70 FR 47880) and for this correction notice contained four IRFs in the second group (that is, facilities that would qualify for some portion less than the full two-thirds of the 19.14 percent rural adjustment in FY 2006).

In conducting the analysis for the FY 2006 final rule (70 FR 47880), we applied the hold harmless policy to IRF PPS payments using the following steps:

Step 1. We identified IRFs that qualify for the hold harmless policy (that is, those existing IRFs that are classified as rural in FY 2005 under § 412.602 and will be redesignated as urban under the CBSA-based definitions in FY 2006).

Step 2. For the IRFs that qualify for the hold harmless policy (identified in step 1), we estimated what they would have been paid under their rural designation in FY 2006, including the FY 2005 rural adjustment of 19.14 percent, based on what we estimate they would have been paid if we had issued an update notice to update FY 2006 IRF PPS payment rates instead of a final rule implementing substantive policy changes. An update notice for FY 2006 would have updated FY 2005 IRF PPS payment rates by the following: the FY 2006 MSA-based wage index, the FY 2006 estimate of the FY 1997-based excluded hospital market basket with capital, and the FY 2006 labor-related share estimated based on the FY 1997-based excluded hospital market basket with capital. Because an update notice would not have changed any IRF PPS policies, the 19.14 percent rural adjustment would have remained unchanged. Thus, to estimate what the IRFs that qualify for the hold harmless policy would have been paid under their rural designation in FY 2006 for the final rule and for this correction notice, we updated FY 2005 IRF PPS payments by the FY 2006 MSA-based wage index, the FY 2006 estimate of the FY 1997-based excluded hospital market basket with capital, and the FY 2006 labor related share estimated based on the FY 1997-based excluded hospital market basket with capital. We also kept the rural adjustment the same as it was in FY 2005, at 19.14 percent.

Step 3. We estimated what the IRFs that qualify for the hold harmless policy would have been paid in FY 2006 with the full two-thirds of the 19.14 percent hold harmless adjustment applied to their FY 2006 payment rates.

Step 4. We compared the estimated payment rates from step 2 and step 3 for each of the IRFs that qualify for the hold harmless policy.

Step 5. If an IRF's FY 2006 estimated payment rate from step 3 was less than the IRF's estimated payment rate from step 2, we applied the full two-thirds of the 19.14 percent adjustment to that IRF's estimated payment rate for FY 2006. However, if an IRF's FY 2006 estimated payment rate from step 3 was greater than that IRF's estimated payment rate from step 2, our methodology for the FY 2006 final rule (70 FR 47880), which is the same methodology we are using in this correction notice, requires that we apply only a portion of the two-thirds of the 19.14 percent adjustment to that IRF's estimated payment rate for FY 2006. The portion of the two-thirds of the 19.14 percent adjustment that we intended to apply in the final rule and in this correction notice to each of these facility's estimated payments was the amount that would make each IRF's estimated payment rate for FY 2006 equal to the estimated payment rate we computed in step 2 (that is, so that the IRF's estimated payment rate would equal, but not exceed, what we estimate the IRF would have been paid in FY 2006 if we had issued an update notice instead of a final rule implementing substantive policy changes for FY 2006 IRF PPS payments). However, in doing the analysis for the FY 2006 final rule, we inadvertently neglected to apply any portion of this adjustment to the estimated payments for these facilities.

Although our methodology in the FY 2006 final rule (70 FR 47880) included the steps discussed above, we inadvertently and incorrectly assigned no hold harmless adjustment in step 5 to estimated payments for the four IRFs that should have received a portion of the hold harmless adjustment when doing the data computations (as described above). In light of the inadvertent inclusion of incorrect data in the analysis for the final rule published in the FY 2006 IRF PPS regulation (70 FR 47880), we are making the following conforming technical changes to some of the numbers and the corresponding text in the FY 2006 final rule (70 FR 47880).

• The budget neutrality factor for the rural adjustment is reduced, from 0.9961 to 0.9957, because the conforming change from initially applying no rural adjustment to estimated payments for the four IRFs described above to applying a portion of the rural adjustment to estimated payments for these four providers increases estimated total payments to IRFs for FY 2006. Since we are implementing the hold harmless policy (described in the FY 2006 final rule (70 FR 47880)) in a budget neutral manner, we need to reduce the budget neutrality factor for the rural adjustment in order to make estimated total IRF payments in FY 2006 the same with and without the hold harmless policy. Decreasing the budget neutrality factor for the rural adjustment also decreases the standard payment amount obtained after applying the budget neutrality factor, from $13,105 to $13,100. In addition, because we now apply the same budget neutrality factor for the low-income patient (LIP) adjustment (0.9851) to $13,100 instead of to $13,105, the resulting standard payment amount obtained after applying the budget neutrality factor for the LIP also decreases, from $12,910 to $12,905 (that is, now the calculation is $13,100 × 0.9851 = $12,905, whereas before the change to the budget neutrality factor for the rural adjustment the calculation was $13,105 × 0.9851 = $12,910).

• The combined budget neutrality factor (that is, the single budget neutrality factor we obtain from multiplying the budget neutrality factors for the wage index adjustment, the rural adjustment, the LIP adjustment, and the teaching status adjustment) decreases, from 0.9699 to 0.9695, because one of the four factors that make up the combined budget neutrality factor decreases (as discussed above).

• The standard payment conversion factor decreases by $5, from $12,767 to $12,762, because the budget neutrality factor for the rural adjustment that is applied to the standard payment amount to calculate the standard payment conversion factor decreases, as described above.

• The outlier threshold amount is reduced by $3, from $5,132 to $5,129, as a result of making the conforming changes to reduce the budget neutrality factor for the rural adjustment and, therefore, to reduce the standard payment conversion factor. This is because, when we lower the standard payment conversion factor by $5, we have to account for this change when we set the outlier threshold amount to ensure that estimated outlier payments will continue to equal 3 percent of estimated total payments in FY 2006.

• Table 11, the example of computing an IRF's Federal prospective payment rate, is revised because the reduction of the standard payment conversion factor, described above, changes all of the FY 2006 Federal prospective payment rates (in Table 12). A change in the rates necessitates a change in the example that is constructed using those payment rates. We have also made conforming changes to the numbers in the text that refer to Table 11.

• Table 12, which contains the final FY 2006 Federal prospective payment rates, is revised because we had to recalculate the prospective payment rates because we are correcting the standard payment conversion factor, described above in this correction notice. The Federal prospective payment rates are computed by multiplying the standard payment conversion factor by the relative weights for each case-mix group (CMG) and tier. Therefore, since the standard payment conversion factor changed, we had to multiply the corrected standard payment conversion factor by the relative weights for each CMG and tier.

• Table 13, which contains the projected impacts of the FY 2006 refinements to the IRF PPS, is revised because the distribution of payments among providers changes slightly due to the budget neutral implementation of the policies. That is, estimated payments to the four IRFs described above increase by an average of 11 percent as a result of applying a portion of the two-thirds of the 19.14 percent rural adjustment to these facilities' payments under the hold harmless policy. Therefore, to implement this policy in a budget neutral manner (that is, such that estimated total IRF payments in FY 2006 are the same with or without the hold harmless policy), estimated payments to those IRFs that do not qualify for the hold harmless policy must be lowered slightly so that estimated total payments to IRFs do not increase because of the policy. This produces a slight redistribution of estimated payments among IRFs that is reflected in the impact analysis (Table 13). Because some of the numbers in Table 13 change, we also make conforming changes to the text that describes Table 13.

In addition to the technical corrections (described above) that we are making because of the inadvertent inclusion of incorrect data for the hold harmless policy, we are also correcting some of the numbers in the FY 2006 final rule (70 FR 47880, 47948 through 47949) that were used to describe our rationale for the hold harmless policy. These numbers, which were intended to indicate the estimated dollar impacts of the hold harmless policy, were inadvertently computed using the incorrect standard payment conversion factor. That is, we inadvertently used the incorrect standard payment conversion factor to compare what estimated payments to the IRFs that would qualify for the hold harmless policy would have been with and without the hold harmless policy. In light of this error, we have corrected the standard payment conversion factor and are making conforming changes to the impact numbers used to describe our rationale for the hold harmless policy in the Correction of Errors section below.

We are also deleting a bullet point summarizing our final hold harmless policy because it was inadvertently added to the section of the FY 2006 final rule (70 FR 47880, 47883) that was summarizing the proposed rule, even though we did not propose this policy in the proposed rule. In light of this, we are making the conforming change to delete the bullet point from the section of the final rule in which we summarized the proposed rule.

We are also correcting some typographical errors and typesetting errors.

In FR Doc. 05-15419 (70 FR 47880), we make the following corrections as described above in Section I of this correction notice:

1. On page 47883, in the second column, second paragraph, 10th bullet, remove the bullet “Implement a budget neutral 3 year hold harmless policy for FY 2005 rural IRFs redesignated as urban in FY 2006.” This bullet point was inadvertently added to the section of the final rule that was summarizing the FY 2006 proposed rule (70 FR 30188). Since we did not propose this policy in the proposed rule, it is therefore incorrect to indicate that it was a proposed policy.

2. On page 47890, in the second column, in the third full paragraph, line 7, “250.1” is corrected to read “250.01”. Commenters requested that we add code 250.01 (insulin dependent diabetes without mention of complications, not stated as uncontrolled). When we were adopting the commenter's request, we inadvertently typed the incorrect code number and corresponding description for this comorbidity code. Therefore, we are correcting typographical errors in the code and corresponding description. Furthermore, we note that code 250.1 is for diabetes with ketoacidosis, not diabetes mellitus without mention of complication not stated as uncontrolled. In addition, 250.1 (diabetes with ketoacidosis) makes no mention of controlled or uncontrolled status. This correction is merely a typographical error, and we are amending the error to reflect the description standard set forth within the ICD-9-CM manual.

3. On page 47890, as explained above, in the second column, in the third full paragraph, line 9, “controlled” is corrected to read “uncontrolled”.

4. On page 47890, as explained above, in the second column, in the fourth full paragraph, line 12, “250.1” is corrected to read “250.01”.

5. On page 47890, as explained above, in the second column, in the fourth full paragraph, line 14, “controlled” is corrected to read “uncontrolled”.

6. On page 47890, as explained above, in the second column, in the fourth full paragraph, line 15, “250.1” is corrected to read “250.01”.

7. On page 47890, as explained above, in the second column, in the fourth full paragraph, line 24, “250.1” is corrected to read “250.01”.

8. On page 47891, as explained above, in the second column, in the paragraph labeled “Final Decision”, line 12, “250.1” is corrected to read “250.01”.

9. On page 47891, as explained above, in the second column, in the paragraph labeled “Final Decision”, line 15, “controlled” is corrected to read “uncontrolled”.

10. On page 47911, in the third column, in the paragraph labeled “Miscellaneous Products”, line 11, “1.322” is corrected to read “1.188”. This was a misprint and does not have any effect on the market basket cost structure or the FY 2006 update.

11. On page 47933, in the third column, third paragraph, line 12, immediately before the formula, the following should be inserted: “where the DSH patient percentage =”. This was inadvertently deleted in the typesetting process.

12. On page 47936, in the second column, line 19, “$5,132” is corrected to read “$5,129”.

13. On page 47936, in the third column, second full paragraph, line 6, “$5,132” is corrected to read “$5,129”.

14. On page 47936, in the third column, second full paragraph, line 14, “$5,132” is corrected to read “$5,129”.

15. On page 47937, in the second column, line 31, “0.9961” is corrected to read “0.9957”.

16. On page 47937, in the second column, line 37, “0.9961” is corrected to read “0.9957”.

17. On page 47937, in the second column, line 38, “0.9699” is corrected to read “0.9695”.

18. On page 47937, in the second column, line 42, “$12,767” is corrected to read “$12,762”.

19. On page 47938, in the first column, in “Step 8”, line 3, “0.9961” is corrected to read “0.9957”.

20. On page 47938, in the second column, in the seventh paragraph, line 16, “0.9961” is corrected to read “0.9957”.

21. On page 47938, in the second column, in the last paragraph, line 9, “$13,105” is corrected to read “$13,100”.

22. On page 47938, in the second column, in the last paragraph, line 12, “$13,105” is corrected to read “$13,100”.

23. On page 47938, in the second column, in the last paragraph, line 13, “$12,910” is corrected to read “$12,905”.

24. On page 47938, in the third column, line 1, “$12,910” is corrected to read “$12,905”.

25. On page 47938, in the third column, line 1, “$12,767” is corrected to read “$12,762”.

26. On page 47939, in the second column, line 21, “0.9699” is corrected to read “0.9695”.

27. On page 47939, in the second column, line 23, “$12,767” is corrected to read “$12,762”.

28. On pages 47939 through 47940, Table 11 is corrected with the following new Table 11.

29. On page 47940, in the first column, line 2, “$35,192.24” is corrected to read “$35,178.45”, as a result of correcting Table 11.

30. On page 47940, in the second column, line 1, “$40,212.49” is corrected to read “$40,196.73”, as a result of correcting Table 11.

31. On page 47940, in the second column, line 2, “$34,436.37” is corrected to read “$34,422.87”, as a result of correcting Table 11.

32. On pages 47940 through 47941, Table 12 is corrected with the following new Table 12.

33. On page 47944, in the first column, in the last bullet, line 2, “D5,132” is corrected to read “D5,129”.

34. On page 47944, in the second column, in the second bullet, line 8, “0.9961” is corrected to read “0.9957”.

35. On page 47944, in the second column, in the fourth bullet, line 3, “D12,767” is corrected to read “D12,762”.

36. On pages 47947, Table 13 is corrected with the following new Table 13.

I. Background

Federal Register Doc. 05-15290 of August 4, 2005 (70 FR 45130), entitled “Hospice Wage Index for Fiscal Year 2006,” includes errors that are identified and corrected in the “Correction of Errors” section below. The errors in this correcting notice are effective as if they had been included in the document published on August 4, 2005. Accordingly, the corrections are effective on October 1, 2005, the effective date of the provisions of the August 4, 2005 final rule.

In the August 4, 2005 final rule, on pages 45146 through 45167, we published an Addendum. In Table A of the addendum, we published the updated urban and rural wage index values for hospices utilizing the Core-Based Statistical Areas (CBSA) designations. To ensure that hospice providers were able to identify their current wage index, Table A contains the CBSA code, CBSA wage index, CBSA county name, and the current MSA designation. There are typographical errors in the wage indexes listed in the table that were as a result of formatting the columns. In addition, in several sections throughout the table (that is, for the CBSA county names located in the urban areas of Gainesville, FL; Newark Union, NJ-PA; Waterloo-Cedar Falls, LA; and Wilmington, DE-MD-NJ), we inadvertently omitted the asterisk that corresponds to the footnotes that appear at the end of the table.

This correction notice is consistent with the published hospice wage index values that will be used to make payment as of October 1, 2005. In section III of this notice, we provide a description of the errors and the changes being made to correct the errors. Thus, for clarity, we will republish only the section of the table that contains errors.

On November 16, 1990, President George H.W. Bush signed the Native American Graves Protection and Repatriation Act of 1990 (the Act) into law. The Act addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony with which they are affiliated. The Act assigns implementation responsibilities to the Secretary of the Interior.

Secretarial Order 3261 reassigns some of these implementation responsibilities to other positions in the Department of the Interior and National Park Service to ensure efficient and effective implementation of the statutory requirements.

Pursuant to the Secretarial Order, the Assistant Secretary for Fish and Wildlife and Parks is responsible for issuing regulations to carry out the Act after consultation with the Assistant Secretary for Indian Affairs; granting extensions of inventory deadlines; awarding grants to assist in implementation of NAGPRA to Indian tribes, Native Hawaiian organizations, and museums. In consultation with the Office of the Solicitor, the Assistant Secretary for Fish and Wildlife and Parks is also responsible for executing provisions of the Act regarding civil penalties against museums that fail to comply with NAGPRA, including investigating allegations of failure to comply with NAGPRA requirements and developing and assessing civil penalties.

The Manager, National NAGPRA Program, reporting to the National Park Service Director through the Associate Director for Cultural Resources, is responsible for managing the operations of the National NAGPRA Program and provides staff support to the Assistant Secretary for Fish and Wildlife and Parks. Such duties include preparing regulations for issuance by the Assistant Secretary for Fish and Wildlife and Parks; reviewing and recommending disposition of requests for extensions of the inventory deadline; publishing notices in the Federal Register; serving as the Designated Federal Official for the Native American Graves Protection and Repatriation Review Committee; in consultation with the Office of the Solicitor, providing technical assistance to the Department of Justice in implementation of the trafficking provisions of NAGPRA; developing and issuing guidelines, technical information, training and other programs; and administering grants to assist Indian tribes, Native Hawaiian organizations and museums in meeting their NAGPRA obligations. The National NAGPRA Program Manager is also responsible for providing staff to support the civil penalty responsibilities of the Assistant Secretary for Fish and Wildlife and Parks, who will report directly to the Assistant Secretary in the performance of these duties.

Some of the abovementioned responsibilities were previously assigned by regulation to the National Park Service Director or the Departmental Consulting Archeologist. This technical amendment revises the rule to be consistent with the realignment of implementation responsibilities in the Secretarial Order.

The Department of the Interior is issuing this technical amendment without prior notice and opportunity for comment as allowed by the Administrative Procedure Act (APA) (5 U.S.C. 553(B)). This provision allows an agency to issue a regulatory action without notice and opportunity for comment when the agency for good cause finds that notice and comment procedures are “impracticable, unnecessary or contrary to the public interest.” This technical amendment will clarify the delegation implementation responsibilities. Immediate implementation of the provisions of this amendment will benefit the public by ensuring efficient administration of the provisions of the Act. Failure to implement this amendment immediately could result in confusion and inefficiency that would adversely affect the public interest. For this reason, the Department of the Interior has determined that prior notice and an opportunity for comment would be impracticable, unnecessary, and contrary to the public interest. This same rationale provides good cause to make the technical amendment effective immediately upon publication, as allowed by the Administrative Procedure Act (553 U.S.C. (d)(3)).

This document is not a significant rule and has not been reviewed 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.

(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 is an agency-specific rule.

(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.

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. ).

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.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. 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.

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.

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment.

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, we have evaluated potential effects on Federally recognized Indian tribes and have determined that there are no potential effects.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification letter addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

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

The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

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 does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

We did not publish a Notice of Proposed Rulemaking (NPRM) for this regulation. Under both 5 U.S.C. 553(b)(A) and (b)(B), the Coast Guard finds that this rule is exempt from notice and comment rulemaking requirements because some of these changes involve agency organization and practices, and all of these changes are non-substantive. This rule consists only of corrections and editorial, organizational, and conforming amendments. These changes will have no substantive effect on the public; therefore, it is unnecessary to publish an NPRM. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

Each year Title 46 of the Code of Federal Regulations is updated on October 1. This rule, which becomes effective on September 30, 2005, makes technical and editorial corrections throughout Title 46. This rule does not change any substantive requirements of the existing regulations.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. As this rule involves internal agency practices and procedures and non-substantive changes, it will not impose any costs on the public.

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

This rule will have no substantive effect on the regulated public. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraphs (34)(a) and (b), of the Instruction from further environmental documentation because this rule involves editorial, procedural, and internal agency functions. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

This is a summary of the Second Order on Reconsideration of the Fifth Report and Order adopted December 22, 2004 and released on January 31, 2005. The complete text of the Second Order on Reconsideration of the Fifth Report and Order, is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The Second Order on Reconsideration of the Fifth Report and Order and related Commission documents may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please make sure you provide the appropriate FCC document number (for example, FCC 04-295 for the Second Order on Reconsideration of the Fifth Report and Order ) and related documents are also available on the Internet at the Commission's Web site: http://wireless.fcc.gov/auctions/.

1. In the Second Order on Reconsideration of the Part 1 Fifth Report and Order, the Commission grants two petitions for reconsideration of the Commission's Part 1 Reconsideration Order. The petitioners seek to modify one of the elements of the three-part test that rural telephone cooperatives must satisfy to receive a limited exemption from the attribution rules that are part of the Commission's part 1 competitive bidding rules. In particular, petitioners seek to refine a portion of the rule that defines the category of eligible rural telephone cooperatives so as not to limit the flexibility of rural telephone cooperatives to provide new telecommunications and other advanced communications services to consumers in rural areas. In this decision, the Commission revises the third element of the exemption to permit a rural telephone cooperative applicant (or its controlling interest) to demonstrate that either it is eligible for tax-exempt status pursuant to section 501(c)(12) of the Internal Revenue Code or it adheres to the cooperative principles enumerated in Puget Sound Plywood, Inc. v. Commissioner of Internal Revenue (Puget Sound), 44 T.C. 305 (1965). The Commission also clarifies how the first element of this rule applies in cases where a rural telephone cooperative applicant is organized in a jurisdiction that lacks a specific statute governing organization as a cooperative.

2. In the Part 1 Fifth Report and Order, 65 FR 52323 (August 29, 2000), the Commission adopted as part of its attribution rule for competitive bidding a controlling interest standard, § 1.2110(c)(2), to be used to determine which applicants are eligible for small business status. Applicants that qualify as small businesses may apply for bidding credits if they are available in a particular service. Through the attribution rule, including the controlling interest standard, the Commission ensures that only those entities truly meriting small business status qualify for the small business provisions.

3. Section 1.2110(c) also provides specific guidance on attribution of interests and gross revenues in certain circumstances. For example, § 1.2110(c)(2)(ii)(F) provides that the officers and directors of any applicant will be considered to have a controlling interest in the applicant. Because the gross revenues of all affiliates of the applicant and affiliates of the applicant's controlling interests are attributed to the applicant in calculating an applicant's gross revenues, the gross revenues of other entities controlled by such officers and directors must be included.

4. Following the adoption of the Part 1 Fifth Report and Order, certain rural telephone cooperative interests petitioned for reconsideration, seeking an exemption for rural telephone cooperatives from the requirement that the gross revenues of entities controlled by an applicant's officers and directors are attributed to the applicant. The petitioners argued that the typical structure and operation of a rural telephone cooperative makes it unlikely that affiliates of officers and directors of a rural telephone cooperative could exercise control over the cooperative.

5. Acknowledging the unique characteristics of rural telephone cooperatives, as compared with traditional business forms, the Commission in its Part 1 Reconsideration Order, adopted a narrow exemption from the attribution rule for the officers and directors of a rural telephone cooperatives pursuant to which the gross revenues of the affiliates of the cooperative's officers and directors are not attributed to the applicant. Specifically, the gross revenues of the affiliates of a cooperative's officers and directors will not be attributed if either the applicant or a controlling interest, as the case may be, meets all of the following conditions: (1) The applicant (or the controlling interest) is validly organized as a cooperative pursuant to state law; (2) the applicant (or the controlling interest) is a “rural telephone company” as defined by section 153(37) of the Communications Act, as amended; and (3) the applicant (or the controlling interest) is eligible for tax-exempt status under section 501(c)(12) of the Internal Revenue Code. In the Part 1 Reconsideration Order, the Commission noted that the exemption will not apply if the gross revenues or other financial and management resources of the affiliates of the applicant's officers and directors (or the controlling interests' officers and directors) are available to the applicant. Also, the Commission noted that if an officer or director of a rural telephone cooperative is considered a controlling interest of the applicant under another subsection of the controlling interest attribution rule, this exemption does not apply. Through these measures the Commission has sought to prevent sham small businesses from obtaining bidding credits while ensuring that bidding credits are received by rural telephone cooperatives that are bona fide small businesses.

6. Consistent with the policy objectives underlying that decision, the Commission also granted three pending waiver requests filed by rural telephone cooperative applicants in Auction No. 44. Specifically, three winning bidders that are rural telephone cooperatives (or wholly-owned by rural telephone cooperatives) and which had filed substantively identical requests for waiver of § 1.2110(c)(2)(ii)(F) were granted waivers conditioned upon the submission of information demonstrating each applicant's compliance with rule adopted in the Part 1 Reconsideration Order. Certain winning bidders in Auction No. 49 also requested similar relief.

7. After adoption of the rural telephone cooperative exemption, the Commission received two petitions for reconsideration of the Part 1 Reconsideration Order asking the Commission to modify the eligibility requirements for the exemption by changing one part of the three-part eligibility standard. Specifically, petitioners ask the Commission to eliminate the prerequisite that the rural telephone cooperative applicant (or its controlling interest) be eligible for tax-exempt status under section 501(c)(12) of the Internal Revenue Code. Petitioners suggest that the Commission should instead employ a test based on a showing that the cooperative operates consistent with the cooperative principles enumerated in Puget Sound. For the reasons discussed below, the Commission revises the eligibility criteria in § 1.2110(b)(3)(iii)(A) to provide an alternative eligibility showing pursuant to which a rural telephone cooperative seeking to exempt from attribution gross revenues (or, where applicable, total assets) attributable through its officers or directors may show that it operates pursuant to the cooperative principles described in Puget Sound.

8. The Commission included the tax-exemption criterion in the rule as a means of ensuring that only bona fide rural telephone cooperatives would be eligible to receive the benefits of this exemption. Parties participating in earlier stages of this proceeding had advised the Commission that rural telephone cooperatives were typically characterized by their tax-exempt status. Section 501(c)(12) of the Internal Revenue Code exempts a telephone cooperative from federal income tax only if 85 percent or more of the cooperative's income consists of amounts collected from members for the sole purpose of meeting losses and expenses. The Commission crafted this exemption based, in part, on the Commission's belief that a cooperative's tax status provided a bright-line rule for which compliance would create no additional burdens on cooperatives beyond their current obligations to comply with the tax code.

9. Petitioners maintain that compliance with the tax code's 85 percent member revenue test is an overly narrow standard for weeding out shams.

10. Petitioners argue that a rural telephone cooperative's tax status is irrelevant to whether or not the entity is controlled by an outside interest or has access to the resources of outside interests.

11. The Commission agrees that the tax-status of a rural telephone cooperative is independent of whether it is a bona fide cooperative.

12. RCC suggests that the Commission should instead use the Puget Sound principles as an element of the eligibility standard for the part 1 attribution exemption. In Puget Sound, the Tax Court identified three basic principles of a cooperative: (1) Subordination of capital, both as regards control over the cooperative undertaking, and as regards the ownership of the cooperative's pecuniary benefits; (2) democratic control by the members; and (3) the vesting in and the allocation among the members of the excess of the operating revenues over the costs incurred in generating those revenues, and that this occur in proportion to the members' active participation in the cooperative endeavor. The IRS has regarded the Puget Sound principles as “fundamental to cooperative operation” and has subsequently incorporated these principles into analysis of the tax treatment of rural telephone cooperatives.

13. The Commission finds these principles of cooperative organization and operation are useful criteria for determining whether a rural telephone cooperative is a bona fide cooperative. The Commission believes that this change will ensure that the benefits of this exemption are limited to bona fide rural telephone cooperatives while providing such entities with the flexibility to further the public interest in expanding telecommunications and other advanced services to the public in rural areas. This revision may enhance the ability of rural telephone cooperatives to participate in spectrum auctions, which, in turn, will promote the deployment of advanced telecommunications services in rural areas as Congress mandated in section 309(j). Therefore, the Commission amends §§ 1.2110(b)(3)(iii)(A)(3) and 1.2112(b)(2)(iv) to require that an applicant (or its controlling interest) that seeks to exempt the gross revenues (or, if applicable for purposes of determining entrepreneur eligibility pursuant to §§ 1.2110(b)(1)(ii) and 24.709, the total assets) of its officers or directors from attribution under § 1.2110(c) of the rules must demonstrate either that it is eligible for tax-exempt status under the Internal Revenue Code or that it operates pursuant to the cooperative principles set forth in Puget Sound.

14. Consistent with the Commission's approach in the Part 1 Reconsideration Order and the Commission's decision here, the Commission grant three pending waiver requests filed by rural telephone cooperative applicants in Auction No. 49.

15. Among the eligibility criteria for the exemption to the Commission's attribution rules for rural telephone cooperatives is the requirement that the applicant for the exemption (or its controlling interest) be validly organized as a cooperative pursuant to state law. Petitioners point out that the Puget Sound cooperative principles are not duplicative of this first element of the three-part qualification test because the validity of a cooperative as a legal entity is independent of the structural factors that make it highly unlikely that rural telephone cooperatives could engage in the kinds of sham transaction that the attribution rule is designed to protect against.

16. Upon further review, the Commission clarifies how the Commission intends to apply this first element of § 1.2110(b)(3)(iii)(A) where there is no state incorporation statute specifically for cooperatives. In these circumstances, the applicant (or the controlling interest) must at the auction short-form application stage certify that it is validly organized under the most closely applicable organizing statute, and that such organization is reflected in its articles of incorporation, by-laws, and/or other relevant organic documents. Copies of all such relevant documents must be submitted to the Commission by winning bidders relying on this exemption in connection with its long-form license application in order to receive a license. The Commission believes that this clarification will provide flexibility for bona fide cooperatives to demonstrate their status in the absence of the possibility of state certification.

17. As required by the Regulatory Flexibility Act, 5 U.S.C. 604, the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis for this Second Part 1 Reconsideration Order.

18. The Second Order on Reconsideration of the Part 1 Fifth Report and Order contains new or modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Pub. Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public and other Federal agencies are invited to comment on the new or modified collection(s) contained in the proceeding.

19. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), a Final Regulatory Flexibility Analysis (FRFA) was incorporated into the report and order section of the Part 1 Fifth Report and Order in WT Docket No. 97-82. In addition, a Supplemental FRFA was incorporated into the Part 1 Reconsideration Order. The Commission received two petitions for reconsideration in response to the Part 1 Reconsideration Order. This present second supplemental FRFA conforms to the RFA.

20. In May 2003, the Commission released its Part 1 Reconsideration Order, which addressed petitions received in response to the Part 1 Fifth Report and Order regarding the amendment of general competitive bidding rules for all auctionable services. Most pertinent for purposes of this Second Order on Reconsideration of the Part 1 Fifth Report and Order, the Commission in the Part 1 Reconsideration Order adopted a limited exemption from its general attribution rules for rural telephone cooperatives that meet specific conditions.

21. Based on the petitions and comments received in response to the Part 1 Fifth Report and Order, the Commission in its Part 1 Reconsideration Order adopted a narrow exemption for the officers and directors of a rural telephone cooperative so that the gross revenues of the affiliates of a rural telephone cooperative's officers and directors need not be attributed to the applicant. Specifically, the exemption provided that the gross revenues of the affiliates of an applicant's officers and directors would not be attributed if either the applicant or a controlling interest, as the case may be, meets all of the following conditions: (1) The applicant (or the controlling interest) is validly organized as a cooperative pursuant to state law; (2) the applicant (or the controlling interest) is a “rural telephone cooperative” as defined by the Communications Act; and (3) the applicant (or the controlling interest) is eligible for tax-exempt status under the Internal Revenue Code. However, the exemption would not apply if the gross revenues or other financial and management resources of the affiliates of the applicant's officers and directors (or the controlling interest's officers and directors) are available to the applicant.

22. The Commission received two petitions for reconsideration of the Part 1 Reconsideration Order. Petitioners request reconsideration of the tax-exempt criteria that the Commission uses to determine eligibility for the attribution rule exemption. Specifically, petitioners seek removal of the requirement that rural telephone cooperatives have tax-exempt status pursuant to section 501(c)(12) of the Internal Revenue Code. Petitioners suggest that this prerequisite be replaced by the requirement that the rural telephone cooperative applicant (or its controlling interest) adheres to the cooperative principles articulated by the U.S. Tax Court in Puget Sound. In the Second Order on Reconsideration of the Part 1 Fifth Report and Order the Commission resolves the petitions for reconsideration filed in response to the Part 1 Reconsideration Order.

23. Based upon the petitions for reconsideration, we will permit a rural telephone cooperative applicant (or its controlling interest) to demonstrate that the rural telephone cooperatives in question is eligible for tax-exempt status pursuant to section 501(c)(12) of the Internal Revenue Code or that it (or its controlling interest) adheres to the cooperative principles articulated in Puget Sound. The purpose of the exemption for rural telephone cooperatives, which is to identify the bona fide small businesses among rural telephone cooperatives and prevent sham small businesses rural telephone cooperatives from obtaining designated entity preferences. The Commission has determined that a requirement that rural telephone cooperative be section 501(c)(12) tax-exempt organizations may inadvertently exclude bona fide rural telephone cooperatives in some cases and may therefore undercut the purpose of the exemption.

24. Also, on its own motion, the Commission has decided that if the applicant is organized in a state that does not have rules or regulations specific to organizing an entity as a cooperative, the applicant may use its by-laws or other relevant documents to demonstrate that it is a cooperative. This new provision provides a means by which applicants can demonstrate organization as a bona fide cooperative even if organized in a state that does not designate specific conditions for cooperative organization.

25. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small organization,” “small business” and “small governmental jurisdiction.” The term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

26. The rule modifications and clarifications adopted in the Part 1 Reconsideration Order are of general applicability to all services and do not apply on a service-specific basis. Therefore, this SFRFA provides a general analysis of the impact of the revised part 1 rule on small businesses rather than a service by service analysis. Accordingly, the revised rules will apply to all entities that apply to participate in Commission auctions, including both small and large entities. The number of entities that may apply to participate in future Commission auctions is unknown. The number of small businesses that have participated in prior auctions has varied. In all of our auctions held to date, 1899 out of a total of 2432 qualified bidders have either claimed eligibility for small business bidding credits or self-reported status as a small business as that term has been defined under rules adopted by the Commission for specific services. (These figures do not generally include applicants for auctions of broadcast licenses where sized-based bidding preferences have not been available).

27. All license applicants that are rural telephone cooperative seeking an exemption from the attribution rules that are part of the Commission's general competitive bidding rules found in part 1 of the Commission's rules are subject to the reporting and record-keeping requirements associated with qualifying for the exemption. These requirements apply in the same way to both large and small entities. Furthermore, applicants are required to apply for spectrum auctions by filing a short-form application (FCC Form 175) prior to the auction. Applicants are also required to file a long-form application (FCC Form 601) at the conclusion of the auction. Specifically, entities seeking status as a small business must disclose on their FCC Form 175s, FCC Form 601s, and on their application for assignment or transfer of control (FCC Form 603), separately and in the aggregate, the gross revenues of the applicant (or licensee), its affiliates, its controlling interests and affiliates of the applicant's controlling interests for each of the previous three years.

28. As a result of the actions taken in the, rural telephone cooperative auction applicants, or those controlled by rural telephone cooperatives, seeking an exemption from the requirement that the gross revenues of entities controlled by an applicant's officers and directors are attributed to the applicant must establish eligibility for this exemption based upon the factors listed above, which have been modified, in part, by the Second Order on Reconsideration of the Part 1 Fifth Report and Order.

29. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule or any part thereof for small entities. The Commission has considered the economic impact on small entities of the following modifications and clarifications adopted in the Second Order on Reconsideration of the Part 1 Fifth Report and Order and has taken steps to minimize the burdens on small entities.

30. Application of attribution rule to rural telephone cooperatives. Based on the petitions and comments received in response to the Second Order on Reconsideration of the Part 1 Fifth Report and Order the Commission modifies a narrow exemption for the officers and directors of a rural telephone cooperative that it adopted so that the rural telephone cooperative does not have to be tax-exempt entity pursuant to section 501(c)(12) of the Internal Revenue Code in order to qualify for the exemption from the attribution rules for the Commission part 1 competitive bidding rule. Specifically, the gross revenues of the affiliates of an applicant's officers and directors will not be attributed if either the applicant or a controlling interest, as the case may be, meets all of the following conditions: (1) The applicant (or the controlling interest) is validly organized as a cooperative pursuant to state law or, where there is no state law, the applicant must certify that it is organized according to commonly accepted cooperative principles as demonstrated by its by-laws, charter, or any other relevant document(s); (2) the applicant (or the controlling interest) is a “rural telephone company” as defined by the Communications Act; and (3) the applicant (or the controlling interest) demonstrates either that it is eligible for tax-exempt status under the Internal Revenue Code or that it adheres to the cooperative principles articulated in Puget Sound. However, the exemption will not apply if the gross revenues or other financial and management resources of the affiliates of the applicant's officers and directors (or the controlling interest's officers and directors) are available to the applicant.

31. The Commission believes that this action will increase the number of rural telephone cooperatives that are eligible for small business status (and the corresponding bidding credits). Such a result will enhance the ability of rural telephone cooperatives to participate in spectrum auctions. This, in turn, will promote the deployment of advanced telecommunications services in rural areas as Congress mandated in section 309(j).

32. The Commission will send a copy of the Second Order on Reconsideration of the Fifth Report and Order, including this SFRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second Order on Reconsideration of the Fifth Report and Order, including this SFRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Second Order on Reconsideration of the Third Report and Order and SFRFA (or summaries thereof) will also be published in the Federal Register .

33. Accordingly, it is ordered that, pursuant to the authority granted in sections 4(i), 303(r) and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 309(j), the petitions for reconsideration of the Part 1 Reconsideration Order filed by a group comprising National Telecommunications Cooperative Association, the Rural Telecommunications Group, the law firm of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, and the law firm of Kraskin, Lesse & Cosson, and a group comprising Cable & Communications Corporation, Northeast Nebraska Telephone Company, and Poka Lambro Telecommunications, Ltd. ARE, to the extent they are addressed herein, granted.

34. It is further ordered that pursuant to the authority granted in sections 4(i), 5(b), 5(c)(1), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 155(b), 155(c)(1), 303(r), and 309(j), the Second Order on Reconsideration of the Part 1 Fifth Report and Order, is hereby adopted and part 1, subpart Q of the Commission's rules is amended as set forth in Appendix A of the Second Order on Reconsideration of the Part 1 Fifth Report and Order, effective 60 days after publication in the Federal Register . The information collection contained in these rules will become effective 70 days after publication in the Federal Register , following Office of Management and Budget approval, unless a notice published in the Federal Register stating otherwise.

35. It is further ordered that the requests of Adams Telecom, Inc., Cable and Communications Corporation, Grand River Communications, Inc., Northeast Nebraska Telephone Company, Poka Lambro Telecommunications, Ltd., S.E.I. Data, Inc., and WCTA Wireless, Inc. for waiver of § 1.2110(c)(2)(ii)(F) as presented in their Applications to Participate in an FCC Auction (FCC Form 175) for Auction No. 49 are granted, conditioned upon the submission to the Commission of information demonstrating compliance with 47 CFR 1.2112(b)(2)(iv), as revised herein, and petitioners Cable and Communications Corporation, Northeast Nebraska Telephone Company, and Poka Lambro Telecommunications, Ltd. will also be permitted to qualify for this exemption by submitting to the Commission information demonstrating the applicant's compliance with 47 CFR 1.2112(b)(2)(vi), as revised herein.

36. It is further ordered that, pursuant to 47 U.S.C. 155(c) and 47 CFR 0.331, the Chief of the Wireless Telecommunications Bureau is granted delegated authority to prescribe and set forth procedures for the implementation of the provisions adopted herein.

DoD published an interim rule at 68 FR 64557 on November 14, 2003, to remove DFARS requirements for contractors to register in the CCR database, since policy on this subject had been added to the FAR. The interim rule also addressed requirements for inclusion of CAGE codes on contracts and in the CCR database to accommodate DoD payment systems.

Three sources submitted comments on the interim DFARS rule. A discussion of the comments is provided below.

1. Comment: Provision of DUNS numbers and CAGE codes. One respondent stated that the interim rule appeared to require contracting officers to provide both a DUNS number and a CAGE code on contractual documents submitted to the payment office, whereas the previous DFARS coverage required either a DUNS number or a CAGE code.

DoD Response: The final rule revises DFARS 204.1103(e) to clarify that contracting officers must include the contractor's CAGE code on contractual documents transmitted to the payment office, instead of the DUNS number.

2. Comment: Timely assignment of CAGE codes. One respondent recommended adding a statement to the rule to address the need for the Defense Logistics Information Service to assign CAGE codes in a timely manner, to avoid payment delays and payment of interest.

DoD Response: DoD agrees that timely assignment of CAGE codes is important. However, such a statement is considered unnecessary for inclusion in the DFARS.

3. Comment: Contractor failure to provide correct or current CCR information. One respondent provided an example of a contractor's failure to maintain current information in the CCR database.

DoD Response: Contractors are responsible for maintaining CCR information and are required to review and update their information annually to ensure it is current, accurate, and complete.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule adds no new requirements for contractors. The rule removes DFARS text on Central Contractor Registration that has become obsolete as a result of policy that was added to the FAR, and retains existing requirements for use of Commercial and Government Entity codes in DoD contracts.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

DoD published an interim rule at 69 FR 55987 on September 17, 2004, to implement Section 802 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 802 requires DoD to prescribe in regulations a quality control policy for the procurement of aviation critical safety items and the modification, repair, and overhaul of those items. The interim rule identified the responsibilities of the head of the design control activity with regard to quality control of aviation critical safety items and related services.

Six respondents submitted comments on the interim rule. A discussion of the comments is provided below.

1. Comment: One respondent suggested there might be confusion between the head of the contracting activity for the procuring activity of an aviation critical safety item and the head of the contracting activity for the design control activity. A proposed change was suggested to clarify this issue.

DoD Response: The final rule amends DFARS 209.270-3(a) to clarify that the policy in that paragraph applies to the head of the contracting activity responsible for procuring an aviation critical safety item.

2. Comment: Two respondents recommended clarification as to who has responsibility for identifying and determining aviation critical safety items.

DoD Response: The final rule adds a paragraph at DFARS 209.270-4(a)(1) to clarify that the head of the design control activity is responsible for identifying items that meet the criteria for designation as aviation critical safety items.

3. Comment: Six respondents requested clarification as to whether the authority to disposition minor nonconformances in aviation critical safety items can be delegated, and recommended that the DFARS state that delegation can be authorized.

DoD Response: The final rule amends DFARS 246.407(S-70) to state that acceptance of minor nonconformances in aviation critical safety items may be delegated as determined appropriate by the design control activity.

4. Comment: Two respondents requested clarification as to whether the rule applies only to Government contract awards or if prime contractors must obtain design control activity approval of subcontracts for aviation critical safety items.

DoD Response: Clarification of this issue in the DFARS rule is considered unnecessary. Unless otherwise stated, DFARS policy applies to contracts awarded by the Government.

5. Comment: One respondent recommended clarification of the connection between the DFARS rule and qualified products list policies.

DoD Response: Clarification of this issue in the DFARS rule is considered unnecessary. However, DoD is presently drafting a joint service/agency instruction that will address this issue.

6. Comment: One respondent asked whether the rule would apply to commercial items acquired under FAR Part 12 or commercial aviation systems and components governed by Federal Aviation Administration (FAA) regulations.

DoD Response: The draft joint service/agency instruction will make it clear that aviation critical safety item policies do not apply to commercial aircraft or subsystems purchased and maintained in accordance with FAA regulations unless specifically required by the military department.

7. Comment: Three respondents questioned whether there would be drawing changes and new reporting requirements as a result of the rule and how the costs associated with these changes would be reimbursed.

DoD Response: The rule contains no requirements for drawing changes or new reporting. Such changes would be determined on a case-by-case basis or would be addressed in policy issued by the requirements community.

8. Comment: Two respondents expressed concern that the rule would result in changes to approved quality systems, additional requirements for disposal of critical safety items, and additional acceptance testing.

DoD Response: The rule does not address these issues. Such changes would be determined on a case-by-case basis or would be addressed in policy issued by the requirements community.

9. Comment: One respondent recommended that DoD look for synergy between the unique item identification policy and aviation critical safety item policy.

DoD Response: DoD is looking at unique item identification as a facilitator for product identification, serialization, and tracking.

10. Comment: Two respondents expressed concern that the rule could have a significant economic impact on small businesses due to (1) new qualification standards established by the heads of the design control activities, and (2) significant differences that exist between contractor/original equipment manufacturer critical component designations and DoD critical safety item designations.

DoD Response: These issues are addressed in the final regulatory flexibility analysis.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 604. The analysis is summarized below. A copy of the analysis may be obtained from the point of contact specified herein.

The objective of the rule is to give the head of the design control activity responsibility for the quality control of aviation critical safety items, including identifying and designating these items, and approval of sources, products, and offerors prior to contract award. Two respondents expressed concern that there could be significant economic impact on small businesses or original equipment manufacturers (OEMs) due to (1) new qualification standards established by the heads of design control activities, and (2) significant differences that exist between contractor/OEM critical component designations and DoD critical safety item designations. If a small business has previously been approved to furnish an aviation critical safety item, has furnished the item within the past 3 years, and has a good quality track record, there should be no impact on that business. Many small businesses fall into this category. If a small business did not go through the approval process but furnished the aviation critical safety item within the past 3 years, the Government will check the company's quality track record and test samples from DoD inventory to ensure conformity. When the company next receives a contract for the aviation critical safety item, the Government will request commonly generated manufacturing, quality, and inspection information. The 3-year timeframe is consistent with established Government and nongovernment qualification requirements, particularly those relating to the aerospace sector. DoD Qualified Products List and Qualified Manufacturers List procedures require revalidation every 2 years. The Society of Automotive Engineers standard AS9102 on Aerospace First Article Inspection requires reinspection of an aerospace part if there has been a lapse in production for 2 years or as specified by the customer. The Federal Aviation Administration's Advisory Circular 00- 56A, Voluntary Industry Distributor Accreditation Program, establishes that civil aerospace parts distributors may not exceed the 24-month requirement if they were accredited prior to revision of the circular and that accredited distributors shall be audited at least once every 36 months. The Aviation Suppliers Association Quality System Standard ASA-100 requires an accreditation audit every 36 months and a surveillance audit during the 36-month period. The National Aerospace and Defense Contractors Accreditation Program (NADCAP)—Performance Review Institute (PRI) establishes product qualification to be generally valid for 3 years or as determined by the specific Qualified Products Group.

In calendar year 2003, the year before the interim rule took effect, 62.8% of Defense Logistics Agency (DLA) contracts for currently identified aviation critical safety items were awarded to small businesses. During the first 8 months of calendar year 2005 (the year after the interim rule became effective), 62.9% of DLA contracts for critical safety items were awarded to small businesses. There has been no significant impact on contract awards to small businesses as a result of the DFARS rule.

Regardless of whether the contractor or DoD designates an item as a critical safety item, the contractor is required to deliver conforming products. This is especially important when the consequences of item failure could be catastrophic. Small businesses that understand the design intent of a critical safety item, and the item's application in the weapon system, its critical attributes, and its failure implications, should have high-performing manufacturing, supplier management, and quality control processes. While the contractor/OEM and DoD may have different methods of categorizing parts, the critical safety item designation is not expected to have a significant cost impact on small businesses with approved quality systems.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

By partnership agreement dated February 1, 2002, between the SBA and DoD, the SBA delegated to DoD its authority to enter into contracts under Section 8(a) of the Small Business Act (15 U.S.C. 637(a)). The expiration date of the partnership agreement has been extended from September 30, 2005, to September 30, 2006. This final rule amends DFARS 219.800 to reflect the extension.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2005-D020.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

The annual DoD appropriations acts restrict the acquisition of ball and roller bearings to those produced by a domestic source and of domestic origin (Section 8064 of the Fiscal Year 2001 DoD Appropriations Act (Public Law 106-259) and similar sections in subsequent DoD appropriations acts). The appropriations acts provide that the Secretary of the military department responsible for the procurement may waive the restriction on a case-by-case basis by certifying in writing to the Committees on Appropriations of the House of Representatives and the Senate, that adequate domestic supplies are not available to meet DoD requirements on a timely basis, and that such an acquisition must be made in order to acquire capability for national security purposes. This final rule revises DFARS 225.7009-3(c) to delegate this waiver authority to the Defense Logistics Agency (DLA) Component Acquisition Executive, for DLA acquisitions that meet the specified criteria.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2005-D019.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This interim rule adds policy and a contract clause to implement Section 579 of Division E of the Consolidated Appropriations Act, 2003 (Pub. L. 108-7), Section 506 of Division D of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and Section 506 of Division D of the Consolidated Appropriations Act, 2005 (Pub. L. 108-447). These statutes require that a bilateral agreement providing for U.S. assistance to a foreign country must specify that the U.S. assistance shall be exempt from taxation by the foreign government. Therefore, the foreign government is prohibited from imposing taxes on commodities acquired under contracts funded by such U.S. assistance. The interim rule addresses the responsibilities of the contractor and the contracting officer regarding the prohibition.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the administrative notification requirements of the rule are expected to affect less than 10 contracts per year. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2004-D012.

The information collection requirements of the rule do not reach the threshold for requiring Office of Management and Budget approval under 44 U.S.C. 3501, et seq.

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 579 of Division E of the Consolidated Appropriations Act, 2003 (Pub. L. 108-7), Section 506 of Division D of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and Section 506 of Division D of the Consolidated Appropriations Act, 2005 (Pub. L. 108-447). These statutes prohibit a government of a foreign country from imposing taxes on the United States under contracts funded by U.S. assistance provided to that country. The rule is needed for effective implementation of the statutory prohibition, as it addresses requirements for prompt notification to the appropriate parties if a foreign government imposes such taxes, so that corrective action can be taken. Comments received in response to this interim rule will be considered in the formation of the final rule.

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.

This final rule is a result of the DFARS Transformation initiative. The rule—

• Deletes the definition of “advisory and assistance services” at DFARS 237.201. The definition is used primarily for budget reporting under 10 U.S.C. 2212, and is adequately addressed in financial management regulations.

• Deletes obsolete text on contracting for engineering and technical services at DFARS 237.203. This text was based on DoD Directive 1130.2, Engineering and Technical Sevices—Management Control, which was cancelled in 1990.

• Deletes a reference listing of DoD publications that govern the conduct of audits at DFARS 237.270. This list has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI). Additional information on PGI is available at http://www.acq.osd.mil/dpap/dars/pgi.

• Deletes obsolete text on management controls and requesting activity responsibilities at DFARS 237.271 and 237.272. This text was based on OMB Circular A-120, Guidelines for the Use of Advisory and Assistance Services, which was rescinded in 1993. OMB Circular A-120 was replaced by OFPP Policy Letter 93-1, Management Oversight of Service Contracting, which is implemented in FAR Subpart 37.5.

DoD published a proposed rule at 70 FR 8562 on February 22, 2005. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule makes no significant change to DoD policy for the acquisition of advisory and assistance services.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

In Title 49 of the Code of Federal Regulations, parts 186 to 199, revised as of October 1, 2004, on page 81, in § 192.614 paragraph (c)(5) is corrected by removing the word “possible” and adding in its place the word “practical”.

Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS. Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle to be admitted into the United States if its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test data or such other evidence as the Secretary of Transportation decides to be adequate.

Under 49 U.S.C. 30141(a)(1), import eligibility decisions may be made “on the initiative of the Secretary of Transportation or on petition of a manufacturer or importer registered under [49 U.S.C. 30141(c)].” The Secretary's authority to make these decisions has been delegated to NHTSA. The agency publishes notice of eligibility decisions as they are made.

Under 49 U.S.C. 30141(b)(2), a list of all vehicles for which import eligibility decisions have been made must be published annually in the Federal Register . On October 1, 1996, NHTSA added the list as an appendix to 49 CFR Part 593, the regulations that establish procedures for import eligibility decisions (61 FR 51242). As described in the notice, NHTSA took that action to ensure that the list is more widely disseminated to government personnel who oversee vehicle imports and to interested members of the public. See 61 FR 51242-43. In the notice, NHTSA expressed its intention to annually revise the list as published in the appendix to include any additional vehicles decided by the agency to be eligible for importation since the list was last published. See 61 FR 51243. The agency stated that issuance of the document announcing these revisions will fulfill the annual publication requirements of 49 U.S.C. 30141(b)(2). Ibid.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations about whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This rule will not have any of these effects and was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. The effect of this rule is not to impose new requirements but to provide a summary compilation of decisions on import eligibility that have already been made and does not involve new decisions. This rule will not impose any additional burden on any person. The agency believes that this impact is minimal and does not warrant the preparation of a regulatory evaluation.

We have not conducted an evaluation of the impacts of this rule under the National Environmental Policy Act. This rule does not impose any change that would result in any impacts to the quality of the human environment. Accordingly, no environmental assessment is required.

Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rule on small entities (5 U.S.C. 601 et seq. ). I certify that this rule will not have a significant economic impact upon a substantial number of small entities within the context of the Regulatory Flexibility Act. The following is our statement providing the factual basis for the certification (5 U.S.C. 605(b)). This rule will not have any significant economic impact on a substantial number of small businesses because the rule merely furnishes information by revising the list in the Code of Federal Regulations of vehicles for which import eligibility decisions have previously been made. Accordingly, we have not prepared a Final Regulatory Flexibility Analysis.

E.O. 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” E.O. 13132 defines the term “Policies that have federalism implications” to include regulations that 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.” Under E.O. 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the regulation.

This rule will have no direct effect 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 E.O. 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This rule will not result in additional expenditures by State, local or tribal governments or by any members of the private sector. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rule does not impose any new collection of information requirements for which a 5 CFR part 1320 clearance must be obtained. DOT previously submitted to OMB and OMB approved the collection of information associated with the vehicle importation program in OMB Clearance No. 2127-0002, which expires on July 31, 2007.

Pursuant to Executive Order 12988, “Civil Justice Reform,” we have considered whether this rule has any retroactive effect. We conclude that it will not have such an effect.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

If you wish to do so, please comment on the extent to which this final rule effectively uses plain language principles.

Under the National Technology and Transfer and Advancement Act of 1995 (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” This rule does not require the use of any technical standards.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov .

This rule is not subject to E.O. 13045 because it is not “economically significant” as defined under E.O. 12866, and does not concern an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children.

NHTSA finds that prior notice and opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(B) because this action does not impose any regulatory requirements. This rule merely revises the list of vehicles not originally manufactured to conform to the FMVSS that NHTSA has decided to be eligible for importation into the United States since the last list was prepared in September, 2004.

In addition, so that the list of vehicles for which import eligibility decisions have been made may be included in the next edition of 49 CFR parts 400 to 599, which is due for revision on October 1, 2005, good cause exists to dispense with the requirement in 5 U.S.C. 553(d) for the effective date of the rule to be delayed for at least 30 days following its publication.