The gypsy moth, Lymantria dispar (Linnaeus), is a destructive pest of forest and shade trees. The gypsy moth regulations (contained in 7 CFR 301.45 through 301.45-12 and referred to below as the regulations) restrict the interstate movement of regulated articles from generally infested areas to prevent the artificial spread of the gypsy moth.

In accordance with § 301.45-2 of the regulations, generally infested areas are, with certain exceptions, those States or portions of States in which a gypsy moth general infestation has been found by an inspector, or each portion of a State that the Administrator deems necessary to regulate because of its proximity to infestation or its inseparability for quarantine enforcement purposes from infested localities. Less than an entire State will be designated as a generally infested area only if: (1) The State has adopted and is enforcing a quarantine or regulation that imposes restrictions on the intrastate movement of regulated articles that are substantially the same as those that are imposed with respect to the interstate movement of such articles; and (2) the designation of less than the entire State as a generally infested area will be adequate to prevent the artificial interstate spread of infestations of the gypsy moth.

Section 301.45-3 of the regulations lists generally infested areas. In this rule, we are amending § 301.45-3(a) by adding one county in Ohio, one county in West Virginia, and two counties in Wisconsin to the list of generally infested areas. As a result of this rule, the interstate movement of regulated articles from these areas will be restricted.

We are taking this action because, in cooperation with the States of Ohio, West Virginia, and Wisconsin, the United States Department of Agriculture conducted surveys that detected multiple life stages of the gypsy moth in Seneca County, OH, in Jackson County, WV, and in Juneau and Sauk Counties, WI. Based on these surveys, we determined that reproducing populations exist at significant levels in these areas. Eradication of these populations is not considered feasible because these areas are immediately adjacent to areas currently recognized as generally infested and are, therefore, subject to reinfestation.

This rulemaking is necessary on an emergency basis because of the possibility that the gypsy moth could be artificially spread to noninfested areas of the United States, where it could cause economic losses due to the defoliation of susceptible forest and shade trees. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

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

We are amending the gypsy moth regulations by adding one county in Ohio, one county in West Virginia, and two counties in Wisconsin to the list of generally infested areas based on the detection of infestations of gypsy moth in those counties. As a result of this action, the interstate movement of regulated articles from those areas will be restricted. This action is necessary to prevent the artificial spread of the gypsy moth to noninfested States.

The following analysis addresses the economic effects of the interim rule on small entities, as required by the Regulatory Flexibility Act. The interim rule will affect the interstate movement of regulated articles, including forest products (logs, pulpwood, wood chips) and Christmas trees, nursery stock, and mobile homes and outdoor household articles from and through the newly regulated areas. The value of sales of Christmas trees and nursery in the affected counties was $1.8 million, representing much less than 1 percent of the total value of such sales in the three States. All four counties are located on the fringe of generally infested areas. Many of the establishments are far from currently infested areas, where there is no infestation or where infestation is negligible.

Treatment costs for growing areas range between $10 and $20 per acre. Fumigation costs, if infestation is found in a shipment, will range between $100 and $150 per truck load. There are at least 89 establishments in the newly regulated counties that produce and ship the regulated articles. Of those, 37 are Christmas tree growers and 52 are nurseries. We do not know the number of loggers/sawmills or movers. All of the establishments are considered to be small businesses.

The regulatory requirements resulting from this rule are expected to cause a slight increase in the costs of business for some of the affected entities, but those additional costs are small when compared to the potential for harm to related industry and the U.S. economy as a whole that would result from the spread of the pest. Since the total value of regulated articles moved from regulated areas to non-regulated areas is a small fraction of the State total, the regulatory effect on State and national prices is expected to be very small. Additionally, since the regulations restrict, but do not prohibit, the movement of regulated articles, articles that meet the requirements of the regulations would continue to enter the market. The overall impact upon price and competitiveness is expected to be minor.

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

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

On December 5, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Wishkah River, WA” in the Federal Register (70 FR 72419). We received no comments on the proposed rule. No public meeting was requested, and none was held.

The operating regulations currently in effect for the drawbridges on the Wishkah River are at 33 CFR 117.1065. The bridge currently opens on signal if at least one-hour notice is provided. The temporary final rule will enable Washington State Department of Transportation (WSDOT), the owner of the Heron Street Bridge, to rehabilitate the structure. The work includes mechanical and electrical improvements, seismic retrofit, debris containment, and the replacement of navigation lights and hydraulic locks on the swing span.

The Heron Street Bridge in the closed position provides 13 feet of vertical clearance above high water and 23 feet above the lowest tide level. Drawbridge openings are not frequent. Most vessels are recreational and commercial fishing vessels, rarely sailboats. From March 7, 2004, to August 10, 2005, the draw opened for vessels 41 times with most of these openings for single vessels. For the 12 months from March 2004 to March 2005 the draw opened 28 times for an average of little better than twice a month.

No comments were received in response to the NPRM. No changes to the proposed 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.

The Coast Guard expects minimal impact from this rule because most vessels will be able to schedule infrequent passage with the authorized delay for openings.

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.

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 would not affect 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 (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

Under the authority of 50 U.S.C. 191 and Coast Guard regulations (33 CFR part 125), the Coast Guard has the authority to require identification credentials for access to waterfront facilities and to port and harbor areas, including vessels and harbor craft in those areas. The Commandant of the Coast Guard, pursuant to 33 CFR 125.15(a), is authorized to direct, from time to time, the Captains of the Port (COTP) “to prevent access of persons who do not possess one or more of the identification credentials listed in § 125.09 to those waterfront facilities, and port and harbor areas, including vessels and harbor craft therein, where the following shipping activities are conducted: * * * [t]hose essential to the interests of national security and defense, to prevent loss, damage or injury, or to insure the observance of rights and obligations of the United States.”

On August 7, 2002, the Coast Guard published a “Clarification of Regulation” in the Federal Register at 67 FR 51082, which notified the public that the Coast Guard may soon begin requiring identification credentials from persons seeking access to waterfront facilities, areas within the port and harbor, and on vessels and harbor craft within such areas.

I have determined that it is necessary to inform the public of the identification credential requirement under 33 CFR 125.15(a) for all individuals seeking access to facilities regulated under 33 CFR part 105. These actions will improve national security by verifying maritime workers' identity, validating their background information, assisting transportation facilities in managing their security risks, and accounting for access of authorized personnel to transportation facilities and activities. This document announces to the public that, in accordance with my authority under 33 CFR 125.15, I am directing COTPs to prevent access to all facilities regulated under 33 CFR part 105 to persons who do not have an identification credential listed in 33 CFR 125.09 or such identification as I have approved below under 33 CFR 125.09(f).

The Coast Guard notes that it will not be issuing Port Security Cards at this time, and reaffirms that when the regulations implementing the Transportation Worker Identification Credential (TWIC) are issued, the Coast Guard will reevaluate this action.

Acceptable forms of identification credentials under 33 CFR 125.09 include the following:

• A Merchant Mariner Document.

• An Armed Forces Identification Card.

• Federal law enforcement credentials.

• Identification credentials issued to public safety officers.

In addition, pursuant to my authority under 125.09(f), I approve as identification credentials the following forms of identification:

• For non-employees and employees of the facility, and longshoremen, a state-issued commercial driver's license with hazardous materials endorsement issued after May 31, 2005.

• For non-employees of the facility, excluding longshoremen, a state-issued driver's license or identification card or a personal identification issued by the individual's employer, union or trade association (33 CFR 101.515(b)(2)); or a passport or commercial drivers license issued by Canada or Mexico.

• For employees of the facility and longshoremen, facility-issued employee identification cards, a state-issued driver's license, or a personal identification issued by the individual's employer, union or trade association (33 CFR 101.515(b)(2)), provided the individual has been screened as outlined below and has not been determined a threat.

For the purposes of this action, “facility employees” include all permanent employees and long-term contractors. Contractors are considered to be long-term if they need regular access to the facility for a period in excess of 90 days.

As discussed below, TSA will analyze the relevant information before determining whether or not an employee or longshoreman poses or is suspected of posing a security threat warranting denial of access to the port facility. TSA will notify the facility and the COTP of persons that pose a security threat. Accordingly, those persons will not have approved identification credentials under 125.09(f) and must be denied access to part 105 facilities.

This action is necessary in the interests of national security and to protect these facilities from loss, damage, or injury.

In order to accomplish screening, the facility operator or longshore union (union) will immediately, but not later than May 30, 2006, provide the following information from the union, facility operator's or long-term contractor's existing files to TSA for each facility employee or longshoreman seeking to use as an identification credential a facility-issued employee identification card, a state-issued driver's license, or personal identification issued by the individual's employer, union or trade association:

• Legal Name (Last, First, Middle, suffix).

• Date of birth (MonthDayYear, 12121970).

• Social Security number (optional, no dashes).

• Alien Identification number (if applicable).

Although the Coast Guard is providing up to 30 days for facility operators and longshore unions to provide the requested information, the COTP may contact the facility operator or union and request that such information be provided immediately.

This information must be contained in a spreadsheet and submitted via the Coast Guard's Homeport Web portal http://homeport.uscg.mil. For information about how to register in Homeport contact the COTP for details. If unable to access Homeport, the data may be submitted via a password-protected compact disk to Stephen Sadler, Director, Maritime and Surface Credentialing, Office of Transportation Threat Assessment and Credentialing—TSA-19, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202. When submitting the information listed above, please provide it in a password protected Excel spreadsheet and include a point of contact (POC) for the facility operator or union and contact information. TSA will contact the POC to obtain the password when it receives information through the mail. Prior to submitting the information listed above, facility operators or unions must notify the individuals on whom information is submitted of their intent to submit the above information for purposes of a security threat assessment, and notify these individuals that they may decline to provide their social security numbers, but that such action may result in delays or make it impossible to complete the assessment. If the port facility operator or Longshore union does not have the information listed above in its existing files and must collect the information directly from the individual, the following Privacy Act notice must be provided to that individual prior to collecting the information:

So as not to prejudice new employees or longshoremen who seek access to the facility using a facility-issued employee identification card, a state-issued driver's license, or a personal identification issued by the individual's employer, union or trade association (33 CFR 101.515(b)(2)) under this action (who will be barred from entry if not screened in a timely manner), facility operators or unions must provide, on a continuing basis, the above-listed information for all new facility employees or longshoremen in a timely manner using the mechanisms listed above. When submitting lists with information for new employees or longshoremen, do not include in the list any employee or longshoreman whose information has previously been submitted.

Threat assessment determinations of facility employees and longshoremen will be conducted by TSA pursuant to its authority to assess threats to transportation under 49 U.S.C. 114(f). For the majority of cases, these threat assessment determinations will be accomplished within 30 days of TSA's receipt of the information discussed above. While the assessment is being performed, personnel will continue to have access to the facility. Unless the facility operator or union receives a written document from TSA stating that TSA has made a threat assessment determination, as outlined below, that a particular facility employee or longshoreman poses a security threat, that individual may be permitted access to the port facility.

If TSA is unable to complete the threat assessment for a specific facility employee or longshoreman with the information initially provided, TSA will request additional information regarding that individual from the facility operator or union. A request for additional information regarding a specific facility employee or longshoreman is not a threat assessment determination; it is merely a request for more information. If TSA requests additional information regarding a specific individual from a facility operator or a union, the operator or union must provide the requested information to TSA within 5 business days.

TSA will examine various factors for the threat assessment of facility employees and longshoremen. TSA's examination will not include a criminal history records check. TSA will check immigration status in the course of the threat assessment evaluation. Facility employees and longshoremen must be a citizen of the United States, a lawful permanent resident of the United States as defined in 8 U.S.C. 1101, or hold an appropriate immigration status, as discussed below. Other acceptable immigration statuses include individuals who possess valid evidence of unrestricted employment and are in a lawful nonimmigrant status, are a refugee admitted under 8 U.S.C. 1137, or are an alien granted asylum under 8 U.S.C. 1158. When verifying immigration status, TSA checks relevant Federal databases and may perform other checks, including verifying the validity of the applicant's social security number or alien registration number.

Any facility employee or longshoreman identified as posing a security threat or as not having legal status under the immigration laws will not be permitted to enter or remain on a 33 CFR part 105 facility. To make such a determination, TSA will check various government databases. Upon checking the relevant databases, TSA will analyze the relevant information from Federal law enforcement and intelligence agencies before determining that a facility employee or longshoreman poses or is suspected of posing a security threat warranting denial of access to the port facility. As mentioned above, this will not include a criminal history records check.

Individuals identified as posing a security threat will receive an Initial Determination of Threat Assessment (hereinafter “Initial Determination”). An Initial Determination does not mean that an individual must be denied access to a facility. Individuals who believe that they have been wrongly identified as posing a security threat and believe they meet the standards for the security threat assessment have the opportunity to appeal an Initial Determination using the appeal procedures established for individuals denied a hazardous materials endorsement under TSA's regulations, which are set forth in 49 CFR 1572.141. If a facility employee or longshoreman fails to initiate an appeal within 30 days after receipt, the Initial Determination becomes final, and TSA serves a Final Determination of Threat Assessment upon the individual and notifies the facility or union and the COTP.

Facility employees or longshoremen believed to pose a security threat will receive a notice from the TSA that they will be denied access to part 105 facilities. Please note this notice will be called an Initial Determination of Threat Assessment and Immediate Revocation of Access Privileges (hereinafter “Immediate Revocation of Access Privileges”). The Immediate Revocation of Access Privileges will be sent to the individual with notification to the facility or union as well as the COTP at the same time to immediately deny that individual access to the facility. Facility employees or longshoremen wishing to appeal an Immediate Revocation of Access Privileges must follow the appeal procedures set forth in 49 CFR 1572.141(i). If that individual fails to initiate an appeal within 30 days after receipt, the Immediate Revocation of Access Privileges becomes final, and TSA serves a Final Determination of Threat Assessment upon the individual and notifies the facility or union as well as the COTP.

If a facility employee or longshoreman appeals the Initial Determination or the Immediate Revocation of Access Privileges, TSA will serve a Final Determination of Threat Assessment or a Withdrawal of the Initial Determination or Immediate Revocation of Access Privileges on that individual and notify the facility or union, and the COTP.

TSA will notify the facility and the COTP of which facility employees or longshoremen who must be denied access to part 105 facilities. The Coast Guard will make available to facilities a list of longshoremen who have been vetted for each port. Access is limited to only those persons who are authorized. Facilities will be subject to Coast Guard examinations to verify that they are complying with the requirements of 33 CFR part 125, as implemented by this document.

This requirement does not prohibit a facility owner or operator from imposing additional requirements above these minimums.

The additional screening provision for specific types of identification credentials, as listed above, is only being used for facility employee and longshoreman credentials at this time because of their regular and constant access to the facility and their knowledge of its operations, as opposed to the infrequent access by other port workers. We continue to view the TWIC as the ultimate solution to the access credential issue.

Persons seeking additional information on this announcement or its enforcement may contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this document. Further information regarding the threat assessments conducted by TSA is provided in the Privacy Impact Assessment for U.S. Port Access Threat Assessments, available on the Department of Homeland Security Web site at: http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0511.xml.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we submitted a copy of this notice to the Office of Management and Budget (OMB) for its review of the collection of information. Due to the circumstances surrounding this notice, we asked for “emergency processing” of our request. We received OMB approval for the collection of information on April 24, 2006. It has been given OMB control number 1625-0110. It is valid through October 31, 2006.

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. The Coast Guard was not given the final voyage plan in time to initiate full rulemaking, and the need for this temporary security zone was not determined until less than 30 days before the SBX-1 will require the zone's protection. Publishing an NPRM and delaying the effective date would be contrary to the public interest since the transit would occur before completion of the rulemaking process, thereby jeopardizing the security of the people and property associated with the operation. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The COTP finds this good cause to be the immediate need for a security zone to allay the waterborne security threats surrounding the SBX-1's transit.

On March 30, 2006, the SBX-1 got underway in the Honolulu Captain of the Port Zone to conduct sea trials in preparation for departure from the zone. The Coast Guard approved and issued COTP Honolulu Order 06-004 (165.T14-141 Security Zone; Waters Surrounding U.S. Forces Vessel SBX-1, HI), which established a temporary security zone lasting from March 30, 2006 through April 05, 2006. During the sea trials, the SBX-1 suffered a casualty that prevented its timely departure from the Honolulu Captain of the Port Zone. The SBX-1 will get underway from Pearl Harbor, HI when repairs have been completed to conduct sea trials and transit out of the Honolulu Captain of the Port Zone. Due to the unknown duration of repairs, the final underway date for the SBX-1 will not be known in advance. Accordingly, the Coast Guard is establishing this security zone, which is necessary to ensure the SBX-1's protection for the entire operation while giving as much public notice as possible.

This temporary security zone is effective from 12 a.m. (HST) on April 14, 2006 to 11:59 p.m. (HST) on May 14, 2006. It is located within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10) and covers all waters extending 500 yards in all directions from the U.S. Forces vessel SBX-1, from the surface of the water to the ocean floor. The security zone moves with the SBX-1 while in transit. The security zone becomes fixed when the SBX-1 is anchored, position-keeping, or moored. The security zone will be activated and enforced for just one week during its month-long effective period. A broadcast notice to mariners will be issued to notify the public of the activation and enforcement week as soon as possible.

The general regulations governing security zones contained in 33 CFR 165.33 apply. Entry into, transit through, or anchoring within this zone while it is activated and enforced is prohibited unless authorized by the Captain of the Port or a designated representative thereof. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the zone. The Captain of the Port may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the security zone is unnecessary or impractical for the purpose of maritime security. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

This rule is not a “significant regulatory action” under § 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under § 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).

The Coast Guard expects 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. This expectation is based on the limited duration of the zone, the constricted geographic area affected by it, and its ability to move with the protected vessel.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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. We expect that there will be little or no impact to small entities due to the narrowly tailored scope of this security zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this 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 either preempts State law or imposes 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not affect 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 is 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 limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation.

On February 27, 2006 (71 FR 9747), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of formal SIP revisions submitted by Pennsylvania on November 21, 2005. These SIP revisions consist of source-specific operating permits and/or plan approvals issued by PADEP to establish and require RACT pursuant to the Commonwealth's SIP-approved generic RACT regulations. The following table identifies the sources and the individual plan approvals (PAs) and operating permits (OPs) which are the subject of this rulemaking.

An explanation of the CAA's RACT requirements as they apply to the Commonwealth and EPA's rationale for approving these SIP revisions were provided in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP on November 21, 2005, to establish and require NO X RACT for five major sources pursuant to the Commonwealth's SIP-approved generic RACT regulations.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 27, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving source-specific RACT requirements for five sources in the Commonwealth of Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On October 27, 1998, EPA published the NO X SIP Call (63 FR 57356). In the NO X SIP Call, EPA took final action to prohibit specified amounts of emissions of one of the main precursors of ground level ozone, NO X , in order to reduce ozone transport across state boundaries in the eastern half of the United States. EPA also set forth requirements for each of the affected upwind states to submit SIP revisions prohibiting those amounts of NO X emissions which significantly contribute to downwind air quality problems. In addition, EPA established state-wide NO X emissions budgets for the affected states to be met by the year 2007. See 40 CFR 51.121(e)(2). The state-wide NO X emissions budgets were calculated by assuming the emissions reductions that would be achieved by applying available, highly cost-effective controls to source categories of NO X . The source categories identified and regulated in the NO X SIP Call were electric generating units (EGUs), non-electric generating units (non-EGUs), internal combustion engines, and cement kilns. For the State of Tennessee, EPA determined the total 2007 State-wide NO X emissions budget to be 163,928 tons per season (tps), with the following 5 sub-budgets:

To assist the states in their efforts to meet the NO X SIP Call, the NO X SIP Call final rulemaking included a model NO X allowance trading regulation, called the “NO X Budget Trading Program for State Implementation Plans,” (40 CFR part 96), that could be used by states to develop their regulations. In the NO X SIP Call, EPA explained that if states developed an allowance trading regulation consistent with the EPA model rule, they could participate in a regional allowance trading program that would be administered by EPA. See 63 FR 57458-57459. EPA's model NO X budget and allowance trading rule sets forth a NO X emissions trading program for large EGUs and non-EGUs. For a full description of EPA's model NO X budget trading program, see 63 FR 57514-56538 and 40 CFR part 96.

In an emissions budget and allowance trading program, the state sets an emissions trading budget for covered sources. The trading budget limits the total number of allowances for each source covered by the program during a particular control period. After setting the trading budget, the state then assigns, or allocates, allowances to the participating entities up to the level of the trading budget. Each allowance authorizes the emission of a quantity of pollutant, e.g. , one ton of airborne NO X . At the end of the control period, each source must demonstrate that its actual emissions during the control period were less than or equal to the number of available allowances it holds. Sources that reduce their emissions below their allocated allowance level may sell their extra allowances. Sources that emit more than the amount of their allocated allowance level may buy allowances from the sources with extra reductions.

In response to the NO X SIP Call, Tennessee submitted SIP revisions in 2000, 2001, and 2003 that consisted of standards for cement kilns and a NO X Budget Trading Program for large EGU's and certain non-EGUs (Trading Program). Tennessee's Trading Program applies to all large EGUs and to non-EGUs that have a heat input capacity equal to or greater than 250 million Brithish thermal units (mmBtu) per hour. Under the Trading Program, each NO X allowance permits a source to emit one ton of NO X during the seasonal control period. NO X allowances may be bought or sold. Unused NO X allowances may also be banked for future use, with certain limitations. Upon finding that the submittals met the requirements of Phase I of the NO X SIP Call, EPA fully approved the State's Trading Program on January 22, 2004 (69 FR 3015). Under the approved Trading Program, Tennessee's NO X trading budget was as follows:

In addition, and also pursuant to the Trading Program, the State made allocations under the trading budget to its EGU and non-EGU sources.

On October 27, 2003, and December 10, 2003, Tennessee submitted SIP revisions to its Trading Program. The first SIP revision submittal corrects a miscalculation in Tennessee's trading budget for non-EGUs. This miscalculation resulted from the use of an incorrect control efficiency percentage for one of the Tennessee Trading Program's non-EGU sources—an Eastman Chemical Company boiler. The correction of this miscalculation results in a 147 tps increase in Tennessee's trading budget for non-EGUs—making its non-EGU trading budget 5,666 tps, instead of 5,519 tps, and increases Tennessee's State-wide NO X budget from 163,928 tpy to 164,075 tpy. Based on this correction, Tennessee's second SIP revision submittal reallocates trading allowances to Eastman Chemical Company.

At the time it developed its Trading Program, Tennessee calculated its 2007 trading budget for covered non-EGUs to be 5,519 tps. This 2007 trading budget reflects calculations for 24 units at 10 plants. The calculations, based upon EPA's NO X SIP Call methodology, require (1) the determination of an adjusted baseline emissions amount (total uncontrolled emissions) at each unit; (2) the application of a growth factor of 1.65; (3) the application of presumptive controls of 60 percent; (4) the calculation of each unit's budget—which represents the difference between the total uncontrolled emissions and the presumptively controlled emissions; and (5) the summation of the total resulting budgets for all units to establish a total non-EGU trading budget. Where units already had controls in place during the period used for the NO X SIP Call inventory, uncontrolled emissions were determined by calculating the control efficiency of those controls and adding those “controlled” emissions back into the baseline amount. Using this formula, Tennessee determined its non-EGU trading budget to be 5,519 tps. See Tennessee Rule 1200-3-27-.06(1)(f).

The State of Tennessee's SIP submittal, dated October 27, 2003, seeks EPA approval to change Tennessee's SIP (specifically Tennessee Rule 1200-3-27-.06(1)(f)) to reflect a non-EGU trading budget of 5,666 tps, instead of 5,519 tps. The basis for this change is information from Eastman Chemical Company indicating that the control efficiency for the low-NO X burners and overfire air on its wall-fired, pulverized coal boiler—Boiler Unit 016 (325-31)—was incorrectly identified as 40 percent during the development of the State's non-EGU trading budget. The correct control efficiency is 54.5 percent. Eastman Chemical Company recognized this error during preparation of its Clean Air Act title V permit application. The corrected control efficiency of 54.5 percent is calculated as follows:

• For pulverized coal, dry bottom wall-fired bituminous pre-New Source Performance Standards boilers, an emission factor of 22 pounds per ton (lb/ton) was used;

• Assuming coal at 12,500 Btu/lb, these factors are equal to 0.88 lb/mmBtu and 0.6 lb/mmBtu, respectively. Boiler Unit 016 (325-31) has a best available control technology limit of 0.4 lb/mmBtu. This would equate to a control efficiency of (0.88-0.4)/0.88 = 54.5 percent.

The original calculation of Tennesee's trading budget for Boiler Unit 016 (325-31) using the incorrect control efficiency of 40 percent was 457.776 tps, which, together with the trading budgets from other covered non-EGUs, resulted in a total non-EGU trading budget of 5,519 tps. The 457.776 tps trading budget for Boiler Unit 016 (325-31) was calculated using the following information:

• Controlled emissions for the Boiler are 416.16 tps.

• A 40 percent control efficiency reflected the control of 277.44 tps.

• When those 277.44 tps of controlled NO X emissions were added back into the baseline of 416.16 tps, the resulting adjusted baseline emissions (reflecting all uncontrolled emissions) was 693.6 tps.

In calculating the trading budget using the incorrect control efficiency figure of 40 percent, the adjusted baseline emissions for the Boiler (693.6 tps) were multiplied by the growth factor of 1.65 to render the amount of uncontrolled emissions for the Unit for the year 2007 (1,144.44 tps). A presumptive control of 60 percent was then applied to the uncontrolled emissions to render the amount of emissions that are controllable at the Boiler (686.664 tps). The difference between the 2007 uncontrolled emissions (1,144.44 tps) and the controllable emissions (686.664 tps) represented the trading budget for the Unit (457.776 tps). Thus, the original calculations for Boiler Unit 016 (325-31) were as follows:

• Total 2007 uncontrolled emissions: 693.6 tps × 1.65 = 1,144.44 tps.

• Presumptive controlled emissions (60 percent) 1,144.44 tps × 0.6 = 686.664 tps.

• Trading budget for Boiler: 1,144.44 tps − 686.664 tps = 457.776 tps.

However, using the corrected control efficiency of 54.5 percent (versus 40 percent) results in more uncontrolled emissions being added back into the adjusted baseline emissions amount (total uncontrolled emissions) calculated for Boiler Unit 016 (325-31) and further results in an increase to the Boiler's trading budget. That is, using the corrected control efficiency for the Boiler of 54.5 percent results in an additional 222.178 tps of controlled emissions that should have been added back into the Boiler's adjusted baseline emissions—resulting in an adjusted baseline emissions for Boiler Unit 016 (325-31) of 915.778 tps.

In calculating the trading budget using this corrected information, the adjusted baseline emissions for the Boiler (915.778 tps) are multiplied by the growth factor of 1.65 to render the amount of 2007 uncontrolled emissions for the Boiler (1,511.0337 tps). A presumptive control of 60 percent is then applied to the uncontrolled emissions to render the amount of 2007 emissions that are controllable at the Boiler (906.62022 tps). The difference between the 2007 uncontrolled emissions (1,511.0337 tps) and the controllable emissions (906.62022 tps) represents the trading budget for the Boiler (604.41348 tps). The corrected calculations for Boiler Unit 016 (325-31) are as follows:

• Uncontrolled emissions through 2007: 915.778 tps × 1.65 = 1,511.0337 tps.

• Presumptive controlled emissions (60 percent) 1,511.0337 tps × 0.6 = 906.62022 tps.

• Trading budget for Boiler: 1511.0337 tps − 906.62022 tps = 604.41348 tps.

The corrected calculations result in a trading budget for Boiler Unit 016 (325-31) of 604.413 tps rather than 457.776 tps. This is a difference of an additional 146.637 tps (or 147 tps when rounding up). The corrected, and additional 147 tps, revises Tennessee's total non-EGU trading budget upward—from 5,519 tps to 5,666 tps. This also revises the total Tennessee State-wide NO X budget upward from 163,928 tps to 164,075 tps.

EPA has reviewed these calculations and concurs with this revision to both the non-EGU trading budget and the overall State-wide NO X budget for Tennessee. Therefore, EPA is approving Tennessee's October 27, 2003 SIP revision. Tennessee's overall NO X emissions budgets and Trading Program budgets are now as follows:

In light of the above correction to Tennessee's non-EGU trading budget, the State's second SIP submittal, dated December 10, 2003, reallocates a portion of the corrected non-EGU trading budget (now 5,666 tps) to Eastman Chemical Company's Boiler Unit 016 (325-31) pursuant to the State's allocation methodology that is set out in its EPA-approved Trading Program. See Tennessee Rule 1200-3-27-.06(2), Subpart E. The reallocation provides the Eastman Chemical Company Boiler with 133 tps of additional trading allowances, for a total of 549 tps.

Under its EPA-approved Trading Program, Tennessee's NO X trading budget allowances are submitted as proposed SIP revisions to EPA for approval. See Tennessee Rule 1200-3-27-.06(1)(h)(3). The State's original EGU and non-EGU trading allowances (submitted to EPA on October 4, 2001) were approved by EPA on January 22, 2004 (69 FR 3015). With very few exceptions, Tennessee allocates allowances equivalent to 60 percent of the adjusted baseline emissions to each non-EGU unit in its Trading Program. Under the State's original (uncorrected) 5, 519 tps trading budget, Tennessee allocated a total of 5,255 tps to the 24 units in its Trading Program. Of that 5,255 tps, Eastman Chemical's Boiler Unit 016 (325-31) was allocated 416 tps based upon the above-discussed erroneously calculated adjusted baseline emissions of 693.6 tps.

Tennessee's December 10, 2003, SIP submittal seeks to adjust the allocation of allowances to Boiler Unit 016 (325-31) in light of the correction to the State's non-EGU trading budget which resulted from correcting the Boiler's adjusted baseline emissions. Using the corrected adjusted baseline emissions for Boiler Unit 016 (325-31) of 915.778 tps, the portion of the non-EGU trading budget allocated to the Eastman Chemical Boiler under the State's 60% allocation methodology becomes 549 tps, rather than 416 tps (an increase of 133 tps). That is, using the State's allocation methodology, 60 percent of the Boiler's adjusted baseline emissions of 915.778 equals 549 tps.

It should be noted that the 133 tps increase in allocations to Boiler 016 (325-31) uses only a portion of the corrected non-EGU trading budget ( e.g. , 133 tps of the 147 tps added to the trading budget after correction). The remainder of the corrected trading budget increase (14 tps) has not been re-allocated by the State. With the 133 tps allocations increase to Boiler 016 (325-31), the resulting corrected total of allocations to all non-EGUs in the State's Trading Program is 5,388 tps. This total of non-EGU allocations represents 95 percent of the State's non-EGU trading budget as required by the Trading Program (and EPA's model trading program). See Tennessee Rule 1200-3-27-.06, Subpart E, Section 92.42(c)(2).

Because Tennessee's reallocation of allowances to Eastman Chemical Company's Boiler Unit 016 (325-31) was made in accordance with the State's EPA-approved Trading Program, EPA concurs with the reallocation and is approving Tennessee's December 10, 2003, SIP submittal. The allocation to Eastman Chemical Company's Boiler 016 (325-31) is now 549 tps.

EPA is approving the aforementioned changes to the Tennessee SIP. EPA has reviewed the State of Tennessee's justification concerning the re-calculation of non-EGU NO X emissions and concurs with Tennessee's 2007 state-wide NO X budget for non-EGUs of 5,666 tps. With this re-calculation, EPA is also approving the resulting increase in Tennessee's State-wide NO X emission budget—now at 164,075 tps. In addition, EPA has also reviewed the State's request to re-allocate allowances of the non-EGU NO X budget to Eastman Chemical Company's Boiler Unit 016 (325-31) based upon these corrections and concurs with the revised allocation of 549 tps for this Unit.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective June 27, 2006 without further notice unless the Agency receives adverse comments by May 30, 2006.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 27, 2006 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 27, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Entities potentially regulated by this action are those associated with the production, import, export, sale, application and use of methyl bromide covered by an approved critical use exemption. Potentially regulated categories and entities include:

The above table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is aware could be potentially regulated by this action. To determine whether your facility, company, business, or organization is regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

EPA published a rule in the Federal Register of February 6, 2006, (71 FR 5985), which contained an error occurring in the calculation of the allocation of critical use allowances. The final rule document contained aggregated totals for both 2006 critical use allowances for pre-plant uses of methyl bromide and 2006 critical use allowances for post-harvest uses of methyl bromide, each measured in kilograms. The totals in Table II of the final rule labeled “ALLOCATION OF CRITICAL USE ALLOWANCES”, and § 82.8(c)(1) “Allocated critical use allowances granted for specified control period,” are incorrectly calculated. Consequently, this technical correction supersedes the totals found in Table II, § 82.8(c)(1), and any other place wherein the original totals are stated in the final rule.

The error occurred due to a spreadsheet miscalculation, which caused a discrepancy in the summed totals of the allocated critical use allowances. This error has been corrected and is represented in the new numbers, provided in this technical correction, for both pre-plant and post-harvest critical uses of methyl bromide. The numerical alterations, which come as a result of this correction, are minor.

The correct total for 2006 critical use allowances for pre-plant uses of methyl bromide is 6,319,080 kilograms. The final rule, published February 6, 2006 (71 FR 5985) incorrectly stated 6,315,237 kilograms. The correct total for 2006 critical use allowances for post-harvest uses of methyl bromide is 608,569 kilograms, but was incorrectly stated in the February 6, 2006 final rule as 506,250 kilograms. For 2006, the correct total production and import amount EPA is authorizing for critical uses is 6,927,649 kilograms. The total was incorrectly stated in the February 6, 2006 final rule as 6,821,487. The correct numbers are shown in the table below.

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, a State must change its program and ask EPA to authorize the 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, the State must change its program because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

EPA concludes that Missouri's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, EPA grants Missouri Final authorization to operate its hazardous waste program with the changes described in the authorization application. Missouri has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects 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 Missouri including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Missouri subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Missouri has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits.

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

EPA did not publish a proposal before today's rule because EPA views this as a routine program change and does not expect comments that oppose this approval. EPA is providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register EPA is publishing a separate document that proposes to authorize the State program changes.

If EPA receives comments that oppose this authorization, EPA will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on this Immediate Final Rule. EPA will then address all public comments in a later final rule. If you want to comment on this authorization, you must do so at this time.

If EPA receives comments that oppose only the authorization of a particular change to the State hazardous waste program, EPA will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose 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.

On November 20, 1985, EPA published a Federal Register document announcing its decision to grant final authorization for the RCRA base program to the State of Missouri which became effective December 12, 1985 (50 FR 47740). Missouri received authorization for revisions to its program as follows: February 27, 1989, effective April 28, 1989 (54 FR 8190); January 11, 1993, effective March 12, 1993 (58 FR 3497); and on May 30, 1997, effective July 29, 1997 (62 FR 29301). On January 7, 1998, (63 FR 683) a correction was made to the May 30, 1997, (62 FR 29301) document to correct the effective date of the rule to be consistent with sections 801 and 808 of the Congressional Review Act, enacted as part of the Small Business Regulatory Enforcement Fairness Act. Additionally, the State adopted and applied for interim authorization for the corrective action portion of the HSWA Codification Rule (July 15, 1985, 50 FR 28702). For a full discussion of the HSWA Codification Rule, the reader is referred to the Federal Register cited above. The State was granted interim authorization for the corrective action portion of the HSWA Codification Rule on February 23, 1994, effective April 25, 1994 (50 FR 8544). Final authorization for corrective action was granted on May 4, 1999, effective July 5, 1999 (64 FR 23740). Missouri received authorization for further revisions to its program on February 28, 2000, effective April 28, 2000 (65 FR 10405); and on October 1, 2001, effective November 30, 2001 (66 FR 49841).

On June 22, 2005, Missouri submitted a final complete program revision application, seeking authorization of its changes in accordance with 40 CFR 271.21. EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that Missouri's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, EPA grants Missouri Final authorization for the following program changes:

The following differences between the Federal Rules and the State Rules have been deemed equivalent:

• 10 CSR 25-3.260(1)(A): Missouri replaces all Federal internal references with references to its own analogs. Missouri incorporates by reference 40 CFR part 60, including Appendix A, within its air emission regulations at 10 CSR 10-6.070(1)(A). Therefore, the state is equivalent to the Federal regulations.

• 10 CSR 25-5.262(2)(C)4.: Missouri has not adopted the Federal provision at 40 CFR 262.34(a)(1)(iii) which was introduced by the Wood Preserving Rule (Checklist 82). Checklist 109 merely made minor typographical changes to this provision due to the insertion of 262.34(a)(1)(iv), which addresses containment buildings. Not adopting 262.34(a)(1)(iii) does not affect the State's provisions for Revision Checklist 109.

• 10 CSR 25-7.266(2)(M)1. and (M)2.: Missouri has substituted the oral and written notification of the director in 40 CFR 266.203(a)(1) with the notification of the “department's emergency response coordinator” in the event of a loss or theft of waste military munitions. This change satisfies the intent of the section; therefore the state section is equivalent to the Federal.

EPA considers the following State requirements to be more stringent than the Federal requirements:

• 10 CSR 25-3.260(2)(C): Missouri does not incorporate by reference the Federal provision on Rulemaking Petitions found at 40 CFR part 260, subpart C. The State requires the petitioner to seek delisting from the Federal EPA after which Missouri may choose to allow the waste delisting to be implemented for the State program. If the State fails to take action within a sixty day window, the delisting is “deemed approved.” The modification is more stringent only in those cases where the State decides not to approve the federal EPA approved delisting. In those cases where the department either approves the delisting or fails to take any action, the modification is equivalent.

• 10 CSR 25-4.261(2)(A)9: Missouri does not incorporate 40 CFR 261.4(a)(16) by reference. This section of the federal regulations excludes comparable fuels and comparable syn/gas fuels in the definition of solid waste. The state's omission of 40 CFR 261.4(a)(16) makes the state more stringent because the syn/gas fuel provisions are considered by EPA to reduce the stringency of the Federal program.

• 10 CSR 25-4.261(2)(D)4: Missouri does not incorporate 40 CFR 261.38 by reference. This section of the Federal regulations includes requirements that syn/gas fuel generators must meet so as not to be fully regulated as hazardous waste generators. The omission of 40 CFR 261.38 from the state regulations makes the state more stringent because the syn/gas fuel provisions are considered by EPA to reduce the stringency of the Federal program.

• 10 CSR 25-5.262(2)(C)6: Missouri modifies its incorporation by reference of 40 CFR 262.34(d)(2) by requiring that all generators regardless of quantity generated, including conditionally exempt small quantity generators and small quantity generators, meet the special requirements for ignitable or reactive waste set forth in 40 CFR 265.176 (incorporated by reference at 10 CSR 25-7.265). Because the State requires the entire group of generators to follow the special requirements, the State provision is more stringent.

• 10 CSR 25-7.266(2)(H)1: Missouri does not incorporate by reference the exemption from regulation of used oil burned for emergency recovery that is a hazardous waste solely because it is a characteristic hazardous waste under 40 CFR part 261, subpart C. The Federal program regulates this waste under the Used Oil requirements found at 40 CFR part 279; however, Missouri includes this as hazardous waste and subjects it to the more stringent requirements of part 266.

• 10 CSR 25-7.268(2)(B): Missouri does not incorporate 40 CFR 268.14(a)-(c) by reference and, as a result, is more stringent because the state does not allow exemptions that the Federal program added with Revision Checklist 109. Missouri does not allow otherwise prohibited wastes to be placed in surface impoundments as allowed by the Federal program through these exemptions.

• 10 CSR 25-7.270(2)(D)6: Missouri does not incorporate by reference 40 CFR 270.42(j)(1) and (2), which address permit modification requirements under 40 CFR 63.1211. Because the State does not substitute its own requirements for the notification and approval processes, the state provision is more stringent than the Federal regulations because this provision is considered by EPA to reduce the stringency of the Federal program. EPA added these provisions to help assure that permitted facilities are able to meet the MACT standards within three years.

These requirements are part of Missouri's authorized program and are federally enforceable.

EPA also considers the following State requirement to go beyond the scope of the Federal program:

• 10 CSR 25-7.266(2)(H)2: Missouri adds language to the end of 40 CFR 266.100(d) which is the Federal provision on the conditional exemption of facilities that process hazardous waste solely for metal recovery. The state requires these facilities to be subject to the Hazardous Waste Resource Recovery Processes regulations at 10 CSR 25-9.020. Because there are no analogous provisions in the Federal program, the State is broader in scope than the Federal program.

Broader-in-scope requirements are not part of the authorized program and EPA can not enforce them. However, although these provisions are not requirements under RCRA, they remain effective as state law.

The following table includes a list of Missouri provisions which were previously authorized, and have since been renumbered. In most instances, the State simply renumbered the provisions while making very minor changes, if any, to the provisions themselves. EPA had determined that the minor changes do not require the provisions to be re-authorized.

Missouri will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization. EPA 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 will continue to implement and issue permits for HSWA requirements for which Missouri is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA reserves the amendment of 40 CFR part 272, subpart AA for this authorization of Missouri's program changes until a later date.

This rule only authorizes hazardous waste requirements pursuant to RCRA section 3006 and does not impose any requirements other than those imposed by State law (see Supplementary Information , Section A. Why are Revisions to State Programs Necessary?). Therefore this rule complies with applicable executive orders and statutory provisions as follows:

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993).

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. ).

After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), I certify that this rule will not have a significant economic impact on a substantial number of small entities.

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications ( i.e. ; 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).

Executive Order 13185 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications ( i.e. , substantial direct effects on one or more Indian Tribes, or 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.)

This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it is not based on environmental health or safety risks.

This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866.

EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of a particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this rule.

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.

EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq. ) 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).

[If you choose to comment on issues in this section, please include the caption “BACKGROUND” at the beginning of your comments.]

Section 1902 of the Social Security Act (the Act) sets forth the requirements for State plans for medical assistance. Before August 5, 1997, section 1902(a)(10)(E) of the Act specified that the State Medicaid plan must provide for some or all types of Medicare cost sharing for three eligibility groups of low-income Medicare beneficiaries. These three groups included qualified Medicare beneficiaries (QMBs), specified low-income Medicare beneficiaries (SLMBs), and qualified disabled and working individuals (QDWIs).

A QMB is an individual entitled to Medicare Part A with income at or below the Federal poverty line (FPL) and resources below $4,000 for an individual and $6,000 for a couple. A SLMB is an individual who meets the QMB criteria, except that his or her income is above 100 percent of the FPL and does not exceed 120 percent of the FPL. A QDWI is a disabled individual who is entitled to enroll in Medicare Part A under section 1818A of the Act, whose income does not exceed 200 percent of the FPL for a family of the size involved, whose resources do not exceed twice the amount allowed under the Supplementary Security Income (SSI) program, and who is not otherwise eligible for Medicaid. The definition of Medicare cost-sharing at section 1905(p)(3) of the Act includes payment for premiums for Medicare Part B.

Section 4732 of the Balanced Budget Act of 1997 (BBA), enacted on August 5, 1997, amended section 1902(a)(10)(E) of the Act to require States to provide for Medicaid payment of the Medicare Part B premiums for two additional eligibility groups of low-income Medicare beneficiaries, referred to as qualifying individuals (QIs).

Specifically, a new section 1902(a)(10)(E)(iv)(I) of the Act was added, under which States must pay the full amount of the Medicare Part B premium for qualifying individuals who would be QMBs but for the fact that their income level is at least 120 percent of the FPL but less than 135 percent of the FPL for a family of the size involved. These individuals cannot otherwise be eligible for medical assistance under the approved State Medicaid plan. The second group of QIs added under section 1902(a)(10)(E)(iv)(II) of the Act includes Medicare beneficiaries who would be QMBs except that their income is at least 135 percent but less than 175 percent of the FPL for a family of the size involved, who are not otherwise eligible for Medicaid under the approved State plan. These QIs were eligible for only a portion of Medicare cost sharing consisting only of a percentage of the increase in the Medicare Part B premium attributable to the shift of Medicare home health coverage from Part A to Part B (as provided in section 4611 of the BBA).

Coverage of the second group of QIs ended on December 31, 2002 and the 2003 Welfare Reform Bill (Pub. L. 108-89) eliminated reference to the QI-2 benefit. In each of the years 2002 and 2003, Continuing Resolutions extended the coverage of the first group of QIs (whose income is at least 120 percent but less than 135 percent of the Federal poverty line) through the next fiscal year, but maintained the annual funding at the FY 2002 level.

In 2004, “A Bill to Amend Title XIX of the Social Security Act to Extend Medicare Cost-Sharing for the Medicare Part B Premium for Qualifying Individuals” (Pub. L. 108-448) continued coverage of this group through September 30, 2005, again with no change in funding.

The BBA also added a new section 1933 to the Act to provide for Medicaid payment of Medicare Part B premiums for QIs. (The previous section 1933 was re-designated as section 1934.)

Section 1933(a) of the Act specifies that a State plan must provide, through a State plan amendment, for medical assistance to pay for the cost of Medicare cost-sharing on behalf of QIs who are selected to receive assistance. Section 1933(b) of the Act sets forth the rules that States must follow in selecting QIs and providing payment for Medicare Part B premiums. Specifically, the State must permit all qualifying individuals to apply for assistance and must select individuals on a first-come, first-served basis (that is, the State must select QIs in the order in which they apply). Under section 1933(b)(2)(B) of the Act, in selecting persons who will receive assistance in years after 1998, States must give preference to those individuals who received assistance as QIs, QMBs, SLMBs, or QDWIs in the last month of the previous year and who continue to be (or become) QIs.

Under section 1933(b)(4) of the Act, persons selected to receive assistance in a calendar year are entitled to receive assistance for the remainder of the year, but not beyond, as long as they continue to qualify. The fact that an individual is selected to receive assistance at any time during the year does not entitle the individual to continued assistance for any succeeding year. Because the State's allotment is limited by law, section 1933(b)(3) of the Act provides that the State must limit the number of QIs so that the amount of assistance provided during the year is approximately equal to the allotment for that year.

Section 1933(c) of the Act limits the total amount of Federal funds available for payment of Part B premiums for QIs each fiscal year and specifies the formula that is to be used to determine an allotment for each State from this total amount. For States that executed a State plan amendment in accordance with section 1933(a) of the Act, a total of $1.5 billion was allocated over 5 years as follows: $200 million in FY 1998; $250 million in FY 1999; $300 million in FY 2000; $350 million in FY 2001; and $400 million in FY 2002. In 1999, the Department published a notice (64 FR 14931, March 29, 1999) to advise States of the methodology used to calculate allotments and each State's specific allotment for that year. Following that notice, there was no change in methodology and States have been notified annually of their allotments. We did not include the methodology for computing the allocation in our regulations. Although the BBA originally provided coverage of QIs only through FY 2002, through several continuing resolutions, coverage has been continued through the current fiscal year, but without any increase in total allocation over the FY 2002 level.

The Federal medical assistance percentage for Medicaid payment of Medicare Part B premiums for qualifying individuals is 100 percent for expenditures up to the amount of the State's allotment. No Federal funds are available for expenditures in excess of the State allotment amount. The Federal matching rate for administrative expenses associated with the payment of Medicare Part B premiums for QIs remains at the 50 percent matching level. Federal financial participation in the administrative expenses is not counted against the State's allotment.

The amount available for each fiscal year is to be allocated among States according to the formula set forth in section 1933(c)(2) of the Act. The formula provides for an amount to each State that is to be based on each State's share of the Secretary's estimate of the ratio of: (a) An amount equal to the total number of individuals in the State who meet all but the income requirements for QMBs, whose incomes are at least 120 percent but less than 135 percent of the Federal poverty line, and who are not otherwise eligible for Medicaid, to (b) the sum of all those individuals for all eligible States.

In FY 2005, some States exhausted their FY 2005 allotments before the end of the fiscal year, which caused them to deny benefits to eligible persons under section 1933(b)(3) of the Act, while other States projected a surplus in their allotments. We asked those States that exhausted or expected to exhaust their FY 2005 allotments before the end of the fiscal year to project the amount of funds that would be required to grant eligibility to all eligible persons in their State, that is, their need. We also asked those States that did not expect to use their full allotments in FY 2005 to project the difference between the amount they expected to spend and their allotment, that is, their surplus. After all States reported these figures, it was evident that the total surplus exceeded the total need. In spite of there being adequate overall funding for the QI benefit, some eligible individuals would have been denied benefits due to the allocation methodology initially used to determine the FY 2005 allotments.

We believed that it was the clear intent of the statute to provide benefits to eligible persons up to the full amount of funds made available for the program. We attributed the difference between the surplus in available QI allotments for some States and the need in other States in FY 2005 as due to the imprecision in the data that we used to provide States with their initial allocations under section 1933 of the Act. Therefore, on August 26, 2005 we published an interim final rule in the Federal Register (70 FR 50214) under which we compensated for this imprecision in order to enable States to enroll those QIs whom they would have been able to enroll had the data been more precise.

The interim final rule amended 42 CFR 433.10(c) to specify the formula and the data to be used to determine States' allotments and to revise, under certain circumstances, individual State allotments for a Federal fiscal year for the Medicaid payment of Medicare Part B premiums for qualifying individuals identified under section 1902(a)(10)(E)(iv) of the Act.

The FY 2005 allotments were determined by applying the U.S. Census Bureau data to the formula set forth in section 1933(c)(2)of the Act. However, the statute requires that the allocation of the fiscal year allotment be based upon a ratio of the amount of “total number of individuals described in section 1902(a)(10)(E)(iv) in the State” to the sum of these amounts for all States. Because this formula requires an estimate of an unknown number, that is, the number of individuals who could be QIs (rather than the number of individuals who were QIs in a previous period), our use of the Census Bureau data in the formula represented a rough proxy to attain the statutory number. Actual expenditure data, however, revealed that the Census Bureau data yielded an inappropriate distribution of the total appropriated fund as evidenced by the fact that several States projected significant shortfalls in their allotments, while many other States projected a significant surplus by the end of the fiscal year 2005. Census Bureau data were not accurate for the purpose of projecting States' needs because the data could not take into consideration all variables that contribute to QI eligibility and enrollment, such as resource levels and the application process itself.

While section 1933 of the Act requires the Secretary to estimate the allocation of the allotments among the States, it did not preclude a subsequent readjustment of that allocation, when it became clear that the data used for that estimate did not effectuate the statutory objective. The interim final rule published in the Federal Register on August 26, 2005 permitted in this specific circumstance a redistribution of surplus funds, as it was demonstrated that the States' projections and estimates resulted in an inequitable initial allocation for FY 2005, such that some States were granted an allocation in excess of their total projected need, while the allocation granted to other States proved insufficient to meet their projected QI expenditures.

In the August 26, 2005 interim final rule, we codified the methodology we have been using to approximate the statutory formula for determining State allotments. However, since certain States projected a deficit in their allotment before the end of fiscal year 2005, the rule permitted fiscal year 2005 funds to be reallocated from the surplus States to the need States. The regulation specified the methodology for computing the annual allotments, and for reallocating funds in this circumstance. The formula used to reallocate funds was intended to minimize the impact on surplus States, to equitably distribute the total needed amount among those surplus States, and to meet the immediate needs for those States projecting deficits. At the time of the publication of the interim final rule on August 26, 2005, the authorization for the QI benefit expired at the end of calendar year 2005, and no additional funds were appropriated for the QI benefit beyond September 30, 2005; therefore, the regulation specified a sunset at the end of calendar year 2005.

Finally, we received only one comment with respect to the August 26, 2005 interim final rule. The comment indicated that the Census Bureau data were inadequate for the purpose of appropriately allocating the funds available for the QI program; in that regard, they commended CMS for modifying the formula to more precisely address States' needs under this program. The comment also asked for clarification on the source of the data used for modifying the allocation formula. Our response to that comment is that the data used are obtained directly from the States and, specifically, are the States' estimates of the expenditures that would be incurred under this program. The August 26, 2005 interim final rule indicated that. As indicated below, the methodology/process for allocation of the QI allotments for FY 2006 and 2007 takes the same approach and uses the same data that were used to reallocate fiscal year 2005 funds.

On October 20, 2005 the “QI, TMA, and Abstinence Programs Extension and Hurricane Katrina Unemployment Relief Act of 2005” was enacted by Congress (Pub. L. 109-91). In particular, section 101 of Pub. L. 109-91 extended the QI program through September 30, 2007 with no change in funding; that is, under this legislation $400 million per fiscal year is appropriated for each of FY 2006 and FY 2007. Under section 101(c), the provisions of section 101 of Pub. L. 109-91 are effective as of September 30, 2005.

We continue to believe that the clear intent of the statute is to provide benefits to eligible persons up to the full amount of funds made available for the program in each fiscal year. We recognize that because of the imprecision in data for computing the States' QI allotments for a fiscal year, there is the potential for a surplus to occur with respect to available QI allotments for some States and a need to occur in other States for FY 2006 and FY 2007. We are publishing this interim final rule for the determination of States' FY 2006 and FY 2007 QI allotments under which we attempt to compensate for the imprecision in data in order to enable States to enroll those QIs whom they would have been able to enroll if the data were more precise.

[If you choose to comment on issues in this section, please include the caption “PROVISIONS” at the beginning of your comments.]

This interim final rule amends 42 CFR 433.10(c) to specify the formula, data, and process to be used for determining and issuing States' QI allotments. This methodology and process provides for an adjustment in the amounts of the QI allotments preliminarily determined for the Medicaid payment of Medicare Part B premiums for qualifying individuals identified under section 1902(a)(10)(E)(iv) of the Act.

Under the methodology and process described in this interim final rule, “initial” FY 2006 and FY 2007 allotments will be derived by applying U.S. Census Bureau data to the formula set forth in section 1933(c)(2) of the Act. The statute requires that the allocation of the fiscal year allotment be based upon a ratio of the amount of “total number of individuals described in section 1902(a)(10)(E)(iv) in the State” to the sum of these amounts for all States. Because this formula requires an estimate of an unknown number, that is, the number of individuals who could be QIs (rather than the number of individuals who were QIs in a previous period), our use of the Census Bureau data in the formula represents a proxy to attain the statutory number. Use of the Census Bureau data may yield an inappropriate distribution of the total appropriated funds resulting in significant shortfalls in the projected allotments for some States and significant surpluses by the end of the fiscal year for other States. Census Bureau data may not be sufficiently accurate for the purpose of projecting States' needs because the data cannot take into consideration all variables that contribute to QI eligibility and enrollment, such as resource levels and the application process itself. While section 1933 of the Act requires the Secretary to estimate the allocation of the allotments among the States, it does not preclude a subsequent readjustment of that allocation, when it becomes clear that the data used for that estimate did not effectuate the statutory objective.

This interim final rule sets out a methodology and process for determining States' QI allotments for FY 2006 and FY 2007 that permits a redistribution of surplus funds to States whose allotments, determined based only on the formula in section 1933 of the Act, would be insufficient to meet their projected QI expenditures for the fiscal year. In this interim final rule, we are codifying the methodology and process we will use to approximate the statutory formula for determining State allotments and making adjustments in such allotment, as appropriate.

In this interim final rule, we set forth a two step/two phase methodology/process for determining States' QI allotments for FY 2006 and FY 2007. Under the first step of phase one, an “initial” allocation would be determined for each State under the formula specified in section 1933 of the Act and based only on the data obtained from the Census Bureau (the 3-year average of the number of Medicare beneficiaries in the State who are not enrolled in the Medicaid program but whose incomes are at least 120 percent of the Federal poverty level and less than 135 percent of the Federal poverty level). However, we would also obtain States' projected QI expenditures for the fiscal year. We would then compare the initial allocations for the fiscal year to the States' projected QI expenditures for the fiscal year to determine those States with a projected need (initial allocation is less than the projected expenditures) or a surplus (initial allocation is greater than the projected expenditures) for the fiscal year. Under the second step, we would adjust the States' initial allocations by considering the States' projected QI expenditures for the fiscal year. This would be done by reducing the States' surpluses by the amount of the total States' need.

In this interim final rule, we will apply this methodology/process in two phases in each fiscal year. That is, at the beginning of each fiscal year, we would determine the initial allocations based on the Census Bureau data, obtain States' projected QI expenditures for the fiscal year, and make any adjustments based on the projected surpluses/needs for the fiscal year. The amount of the States' QI allotments determined under phase one at the beginning of the fiscal year would be considered the “preliminary” QI allotments for the fiscal year. Then, under phase two of the process sometime during the fourth quarter of the fiscal year we would obtain States' updated projected QI expenditures for the fiscal year. We would then establish the “final” QI allotments for the fiscal year based on these updated projections.

The final QI allotments would be determined by comparing the initial QI allotments for the fiscal year (again which are calculated based on the Census Bureau data) to the States' updated projections of QI expenditures for the fiscal year; this would established the States with a “final” projected need (initial allocation is less than the updated projected expenditures) or a surplus (initial allocation is greater than the updated projected expenditures) for the fiscal year. Using the updated projected QI expenditures, we would adjust the States' initial allocations by reducing the surplus States' initial allotments proportionately to meet the need States' deficits. This is the same methodology used for determining the FY 2005 allotments as published in the interim final rule published on August 26, 2005 in the Federal Register ; the only change is that in computing the FY 2006 and FY 2007 allotments, we will determine the preliminary allotments at the beginning of the fiscal year using States' preliminary projected QI expenditures, and then we will determine the final QI allotments later in the fiscal year using States' updated projected QI expenditures.

The formula used to reallocate the available funds to need States is intended to minimize the impact on surplus States, to equitably distribute the total needed amount among those surplus States, and to meet the needs for those States projecting deficits. Since under Pub. L. 109-91 the authorization for the QI benefit expires at the end of calendar year 2007, and currently no funds have been appropriated for the QI benefit beyond September 30, 2007, this regulation will sunset at the end of calendar year 2007. Should the Congress authorize an extension of the QI benefit and appropriate additional funds for allocation among the States, we will amend the sunset date in this regulation to take into account any extension.

The resulting initial allotments for FY 2006 are shown by State in the table below. In this table each column contains data defined as follows:

Column A—State. Column A shows the name of each State.

Columns B through D show the determination of the States' Initial FY 2006 QI Allotments, based only on Census Bureau data.

Column B—Number of Individuals. Column B contains the estimated average number of Medicare beneficiaries for the years 2003 through 2005 who are not covered by Medicaid whose family income is between 120 and 135 percent of the poverty level for each State, in thousands, as obtained from the Census Bureau's Annual Social and Economic Supplement to the Current Population Survey through March of 2005.

Column C—Percentage of Total. Column C provides the percentage of total number of individuals for each State, determined as the Number of Individuals for the State in Column B divided by the sum of the Number of Individuals for all States in Column B.

Column D—Initial QI Allotment. Column D contains each State's Initial FY 2006 QI allotment, calculated as the State's Percentage of Total in Column C multiplied by $400,000,000, the total amount available for FY 2006 for all States.

Columns E through J show the determination of the States' Preliminary FY 2006 QI Allotments.

Column E—FY 2006 Estimated QI Expenditures. Column E contains the States' most recent estimates of their total QI expenditures for FY 2006.

Column F—Need (Difference). Column F contains the additional amount of QI allotment needed for those States whose estimated expenditures in Column E exceed their Initial FY 2006 QI allotments in Column D; for such States, Column E shows the amount in Column E minus the amount in Column D. For other States, Column F shows “NA.”

Column G—Reduction Pool for Non-Need States. Column G contains the amount of the pool of surplus FY 2006 QI allotments for those States that project they will not need all of their FY 2006 QI allotments (referred to as non-need States). For States whose estimates of QI expenditures for FY 2006 in Column E are equal to or less than their Initial FY 2006 QI allotments in Column D, Column G shows the amount in Column D minus the amount in Column E. For the States with a need, Column G shows “Need.” The pool of excess QI allotments is equal to the sum of the amounts in Column G.

Column H—Percent of Total Non-Need States. Column H shows the percentage of the total excess FY 2006 allotments for each Non-Need State, determined as the amount for each Non-Need State in Column G divided by the sum of the amounts for all States in Column G.

Column I—Reduction for Non-Need States. Column I shows the amount of reduction to Non-Need States' Initial FY 2006 QI allotments in Column D in order to provide for the total need shown in Column F. The amount in Column I is determined as the percentage in Column H for Non-Need States multiplied by the sum of the need for all States from Column F.

Column J—Preliminary FY 2006 QI Allotment. Column J contains the Preliminary FY 2006 QI allotment for each State. For States that need additional amounts based on their FY 2006 Estimated QI Expenditures in Column E, Column J is equal to the Initial FY 2006 QI Allotment in Column D plus the amount of Need Column F. For Non-Need States, Column J is equal to the Initial FY 2006 QI Allotment in Column D minus the amount in Column I.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).

[If you choose to comment on issues in this section, please include the caption “WAIVER OF ADVANCE PUBLIC COMMENT” at the beginning of your comments.]

We ordinarily publish an advance notice in the Federal Register for substantive rules to provide a period for public comment. However, we may waive that procedure if we find good cause that notice and comment are impractical, unnecessary, or contrary to the public interest. In addition, we also normally provide a delay of 30 days in the effective date. However, if adherence to this procedure would be impractical, unnecessary, or contrary to public interest, we may waive the delay in the effective date.

We are publishing this rule as an interim final rule because of the need to notify individual States of the limitations on Federal funds for their Medicaid expenditures for payment of Medicare Part B premiums for qualifying individuals. Some States have experienced deficits in their current allotments that have caused them to deny benefits to eligible applicants, while other States project a surplus in their allotments. This rule permits redistribution of funds and will allow all eligible applicants to receive QI benefits during this calendar year. Because access to Medicare Part B coverage for QIs, who without this coverage would have difficulty paying for needed health care, is critically important, we believe that it is in the public interest to waive the usual notice and comment procedure which we undertake before making a rule final.

Also, for the reasons discussed above, we find that good cause exists to dispense with the normal requirement that a regulation cannot become effective any earlier than 30 days after its publication. States that will have access to additional funds to enroll QIs need to know that these funds are available as soon as possible, so they can begin enrolling QIs. While we believe those States that will have diminished amounts available for this fiscal year will have sufficient funds for enrolling all potential QIs in their States, they also need to know as soon as possible that a certain amount of their unused allocation will no longer be available to them for this fiscal year.

We are publishing this interim final rule with a 60-day period for public comment. However, if we decide that changes are necessary as a result of our consideration of timely comments, we will issue a final rule and respond to the comments in that rule.

We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

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

This interim final rule with comment period codifies our procedures for implementing provisions of the Balanced Budget Act of 1997 to allocate, among the States, Federal funds to provide Medicaid payment for Medicare Part B premiums for low-income Medicare beneficiaries. The total amount of Federal funds available during a Federal fiscal year and the formula for determining individual State allotments are specified in the law. We have applied the statutory formula for the State allotments. Because the data specified in the law were not initially available, we used comparable data from the U.S. Census Bureau on the number of possible qualifying individuals in the States. This rule also permits, in a specific circumstance, reallocation of funds to enable enrollment of all eligible individuals to the extent of the available funding.

We believe that the statutory provisions implemented in this interim final rule with comment period will have a positive effect on States and individuals. Federal funding at the 100 percent matching rate is available for Medicare cost-sharing for Medicare Part B premium payments for qualifying individuals and, with the reallocation of the State allotments, a greater number of low-income Medicare beneficiaries will be eligible to have their Medicare Part B premiums paid under Medicaid. In no States will the changes in allotments result in fewer individuals receiving the QI benefit. The FY 2006 and FY 2007 costs for this provision have been included in the FY 2007 President's Budget.

Section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis for any rule that may have a significant impact on the operations of a substantial number of small rural hospitals. The analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside a Core-Based Statistical Area and has fewer than 100 beds.

We are not preparing analyses for either the RFA or section 1102(b) of the Act because we have determined and certify that this interim final rule with comment period will not have a significant economic impact on a substantial number of small entities or a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.

In accordance with the provisions of Executive Order 12866, this interim final rule with comment period was reviewed by the Office of Management and Budget.

The Mental Health Parity Act of 1996 (MHPA) was enacted on September 26, 1996 (Pub. L. 104-204). MHPA amended the Public Health Service Act (PHS Act) and the Employee Retirement Income Security Act of 1974 (ERISA) to provide for parity in the application of annual and lifetime dollar limits on mental health benefits and the application of dollar limits on medical/surgical benefits. Provisions implementing MHPA were later added to the Internal Revenue Code of 1986 (Code) under the Taxpayer Relief Act of 1997 (Pub. L. 105-34).

The provisions of MHPA are set forth in Title XXVII of the PHS Act, Part 7 of Subtitle B of Title I of ERISA, and Chapter 100 of Subtitle K of the Code. The Secretaries of Health and Human Services, Labor, and the Treasury share jurisdiction over the MHPA provisions. These provisions are substantially similar, except for jurisdictional differences. See for example, the amendment to the interim final rule published July 22, 2005 (70 FR 42276).

The MHPA provisions are set forth in section 2705 of the PHS Act, section 712 of ERISA, and section 9812 of the Code. MHPA applies to a large group health plan (or health insurance coverage offered in connection with a large group health plan) that provides both medical/surgical benefits and mental health benefits. MHPA's original text included a sunset provision specifying that MHPA's provisions would not apply to benefits for services furnished on or after September 30, 2001. On December 22, 1997, the Departments of Health and Human Services, Labor, and the Treasury issued interim final regulations under MHPA in the Federal Register (62 FR 66931). The interim final regulations included this statutory sunset date.

The sunset date has been extended on a yearly basis by subsequent statutory provisions, which are described in detail in the amendment to the interim final rule published July 22, 2005 (70 FR 42276). The Department has published changes to the interim final mental health parity regulations to conform the expiration date of the regulation to each new statutory sunset date. (See 70 FR 42276, July 22, 2005).

On December 30, 2005, President Bush signed H.R. 4579 (Pub. L. 109-151). That legislation further extended MHPA's sunset date under the PHS Act, ERISA, and the Tax Code so that MHPA's provisions apply to any services furnished through December 31, 2006.

This statutory amendment has not altered MHPA's scope. It continues to apply to a large group health plan (or health insurance coverage offered in connection with a large group health plan) that provides both medical/surgical benefits and mental health benefits. To assist plan sponsors, health insurance issuers, and covered individuals, the Department is publishing this amendment to the interim final regulations, conforming the regulatory sunset date to the new statutory sunset date. The Department is making the effective date of this amendment to the interim final regulations effective as of May 30, 2006. Since the extension of this sunset date is essentially self-implementing, this amendment to the MHPA regulations is published on an interim final basis under section 2792 of the PHS Act.

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

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

Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). According to the terms of the Executive Order, it has been determined that this action is not a “significant regulatory action” within the meaning of the Executive Order. Rather, it is an amendment to the 1997 interim final regulations that makes no substantive changes to those regulations, and merely extends the regulatory sunset date to conform to the new statutory sunset date added by Public Law 109-151. Because it is not a major rule, we are not required to perform an assessment of the costs and savings.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and we certify, that this rule will not have a significant economic impact on a substantial number of small entities.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector.

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

We have reviewed this rule and determined that, under the provisions of Public Law 104-121, the Contract with America Act, it is not a major rule.

On April 13, 2006 (71 FR 19348, FR Doc. 06-3504), an interim final rule was published that implemented emergency management measures, authorized by section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, that are intended to immediately reduce fishing mortality on specific groundfish stocks beginning May 1, 2006, in order to maintain the rebuilding programs established under Amendment 13 to the FMP. However, the interim final rule included several inadvertent errors and some unclear language in both the preamble and the regulatory text that need to be corrected or clarified. The errors and unclear language were incorrect examples of how monkfish-only DAS are calculated when a vessel issued both a limited access NE multispecies DAS and a monkfish permit is subject to differential DAS counting, an inaccurate description regarding the examples of how NE multispecies Category A DAS will be calculated for Day gillnet vessels, omission of the observer notice requirement for vessels participating in the U.S./Canada Management Area, and inaccurate white hake trip limits in the regulatory text that differed from the preamble text. This notice corrects these errors and clarifies the unclear language, as described below.

A proposed rule for this action was published on March 13, 2006, (71 FR 12665) with public comments accepted though April 12, 2006. A detailed description of the administrative process used to develop the TACs was contained in the preamble of the proposed rule and is not repeated here. The FMP specifies procedures for setting three types of TACs: (1) Annual hard (i.e., the fishery or area closes when a TAC is reached) TACs for Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder; (2) target TACs for all regulated groundfish stocks; and (3) hard Incidental Catch TACs for groundfish stocks of concern.

The regulations governing the annual development of hard TACs for the U.S./Canada Management Area species (§ 648.85(a)(2)) were implemented through the final rule for Amendment 13 to the FMP (69 FR 22906; April 27, 2004) in order to be consistent with the U.S./Canada Resource Sharing Understanding (Understanding), which is an informal understanding between the United States and Canada that outlines a process for the management of the shared GB groundfish resources. The Understanding specifies an allocation of TAC for these three stocks for each country, based on a formula that considers historical catch percentages and current resource distribution.

On September 15, 2005, the Council accepted the recommendations of the TMGC for the FY 2006 TACs for GB cod, GB haddock, and GB yellowtail flounder. The recommended 2006 TACs were based upon the most recent stock assessments (Transboundary Resource Assessment Committee (TRAC) Status Reports for 2005), and the fishing mortality strategy shared by both the U.S. and Canada. The strategy is to maintain a low to neutral risk of exceeding the fishing mortality limit reference (F ref = 0.18, 0.26, and 0.25 for cod, haddock, and yellowtail flounder, respectively). That is, when stock conditions are poor, fishing mortality rates (F) should be further reduced to promote rebuilding.

This action implements the following hard TACs for GB: 374 mt of GB cod, 7,480 mt of GB haddock, and 2,070 mt of GB yellowtail flounder. The FY 2006 haddock and yellowtail flounder TACs represent decreases from FY 2005 TAC levels (by 1 percent and 51 percent, respectively), and the FY 2006 cod TAC represents a 44-percent increase from the FY 2005 TAC (Tables 1 and 2).