Rules and Regulations. Notice of temporary deviation from regulations

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BILLING CODE 4830-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-06-024] Drawbridge Operation Regulations; Gulf Intracoastal Waterway, Galveston, TX AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Galveston Causeway Railroad Bascule Bridge across the Gulf Intracoastal Waterway, mile 357.2 west of Harvey Locks, at Galveston, Galveston County, Texas. This deviation provides for two

(2)three-hour closures to conduct scheduled maintenance to the drawbridge. DATES: This deviation is effective from 7 a.m. until 4 p.m. on Wednesday, August 16, 2006. ADDRESSES: Materials referred to in this document are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, Hale Boggs Federal Building, room 1313, 500 Poydras Street, New Orleans, Louisiana 70130-3310 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is

(504)671-2128. The Bridge Administration Branch of the Eighth Coast Guard District maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: David Frank, Bridge Administration Branch, telephone

(504)671-2129. SUPPLEMENTARY INFORMATION: The Burlington Northern Railway Company has requested a temporary deviation from the bridge operating requirements of 33 CFR 117.5 in order to perform necessary maintenance on the rail joints of the Galveston Causeway Railroad Bascule Bridge across the Gulf Intracoastal Waterway, mile 357.2 west of Harvey Locks, at Galveston, Galveston County, Texas. The maintenance is essential for the continued safe operation of the railroad bridge. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 7 a.m. until 10 a.m. and from 1 p.m. until 4 p.m. on Wednesday, August 16, 2004. The bridge has a vertical clearance of 10 feet above mean high water in the closed-to-navigation position. Navigation at the site of the bridge consists mainly of tows with barges and some recreational pleasure craft. Due to prior experience, as well as coordination with waterway users, it has been determined that this closure will not have a significant effect on these vessels. No alternate routes are available. In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: July 31, 2006. Marcus Redford, Bridge Administrator. [FR Doc. E6-12790 Filed 8-7-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 125 [USCG-2006-24189] Maritime Identification Credentials AGENCY: Coast Guard, DHS. ACTION: Notice of acceptable identification credentials; correction. SUMMARY: This document corrects a typographical error to a statutory citation in the Coast Guard document entitled “Notice of acceptable identification credentials” (USCG-2006-24189) published on April 28, 2006, in the **Federal Register** (71 FR 25066). DATES: This correction is effective August 8, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2006-24189 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. They may also be viewed online at *http://dms.dot.gov* at any time. Conduct a simple search and enter in the last five digits of the docket number listed above. FOR FURTHER INFORMATION CONTACT: If you have questions on this correction document, call Amy Bunk, Office of Regulations and Administrative Law, Coast Guard, telephone 202-372-3864. If you have questions on viewing material in the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402. SUPPLEMENTARY INFORMATION: The document entitled “Maritime Identification Credentials” (USCG-2006-24189), which published in the **Federal Register** (71 FR 25066) on April 28, 2006, informed the public that the Commandant of the Coast Guard was directing Coast Guard Captains of the Port to prevent access to waterfront facilities to persons that do not have appropriate identification credentials as defined under Coast Guard regulations. The document also identified additional identification documents approved by the Commandant as identification credentials. In that document the statutory citation for the United States Code section entitled “Annual admission of refugees and admission of emergency situation refugees” had a typographical error and read 8 U.S.C. 1137. The correct citation for that section of the United States Code is 8 U.S.C. 1157. In FR Doc. 06-4026 published on April 28, 2006, (71 FR 25066) make the following correction. On page 25068, in the first column, change the fifth sentence in the first paragraph to read as follows: 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. 1157, or are an alien granted asylum under 8 U.S.C. 1158. Dated: August 2, 2006. Stefan G. Venckus, Chief, Office of Regulations and Administrative Law, United States Coast Guard. [FR Doc. E6-12843 Filed 8-7-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AM27 Veterans Benefits Act of 2003 and Veterans Benefits Improvement Act of 2004 AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: This document amends the Department of Veterans Affairs

(VA)adjudication regulations to incorporate certain provisions from the Veterans Benefits Act of 2003 and the Veterans Benefits Improvement Act of 2004. Specifically, this document amends VA's adjudication regulations regarding plot or interment allowance eligibility, forfeiture of benefits, dependency and indemnity compensation payments, the Radiation Exposure Compensation Act of 1990, as amended, exclusions from income for pension purposes, benefits for persons disabled by treatment or vocational rehabilitation provided by VA, effective date of death pension, and diseases subject to presumptive service connection. This document also amends VA's adjudication regulations to reflect the establishment of the Social Security Administration as an independent agency and that the Coast Guard is now under the jurisdiction of the Secretary of Homeland Security. These amendments are necessary to conform the regulations to the statutory amendments. DATES: *Effective Date:* August 8, 2006. *Applicability Dates:* In accordance with statutory provisions, the following amendments in this final rule will be applied as follows. The amendment to 38 CFR 3.309 is applicable to payments for periods beginning on or after March 26, 2002. The amendment to 38 CFR 3.715 is applicable to compensation and dependency and indemnity compensation payments for months beginning April 1, 2002. The amendment to 38 CFR 3.1(g)(4) is applicable March 1, 2003. The amendments to 38 CFR 3.152, 3.153, and 3.714 are applicable December 16, 2003. The amendments to 38 CFR 3.1600 and 3.1604 are applicable to claims filed on or after December 16, 2003. The amendment to 38 CFR 3.903 is applicable to claims filed on or after December 17, 2003. The amendment to 38 CFR 3.272 is applicable for periods on or after December 10, 2004. The amendments to 38 CFR 3.362 and 3.800 are applicable in the case of a judgment, settlement, or compromise covered by 38 U.S.C. 1151(b)(1) that becomes final on or after December 10, 2004. The amendment to 38 CFR 3.400 is applicable to claims filed on or after December 10, 2004. The amendment to 38 CFR 3.808 is applicable to benefits awarded pursuant to these regulations by VA on or after December 10, 2004. The amendment to 38 CFR 3.10 is applicable to payments beginning January 1, 2005. FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, Compensation and Pension Service, Policy and Regulations Staff, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,

(202)273-7210. SUPPLEMENTARY INFORMATION: The Veterans Benefits Act of 2003 and the Veterans Benefits Improvement Act of 2004, Public Law 108-183 and Public Law 108-454 respectively, added and revised sections of title 38 of the United States Code, which addresses veterans benefits law. To ensure consistency with statutory changes, VA regulations will be amended as further described below. Section 501 of the Veterans Benefits Act of 2003 amended 38 U.S.C. 2303(b)(1) and (2), Death in Department facility; plot allowance, and 38 U.S.C. 2307, Death from service-connected disability, to allow States to receive a plot or interment allowance for the interment, in a state cemetery or portion thereof used solely for the burial of veterans, of any veteran eligible for burial in a national cemetery. Under prior law, the allowance was payable only for veterans of a war, veterans discharged for disability incurred or aggravated in the line of duty, veterans entitled to VA compensation or pension, and certain other veterans. VA's regulation regarding payment of burial expenses for deceased veterans is 38 CFR 3.1600 and VA's regulation regarding payment of a plot or interment allowance to a State is 38 CFR 3.1604(c) and (d). This document amends §§ 3.1600(a) and

(f)and 3.1604(c) and (d)(1)(i) and

(5)to provide, in accordance with the statutory amendments, that States may be paid a plot or interment allowance on behalf of veterans buried in a state veterans' cemetery who were eligible for burial in a national cemetery and that the allowance is payable to States in addition to burial or funeral expenses to which they are eligible. The amendments to 38 CFR 3.1600 and 3.1604 are applicable to claims for an allowance filed on or after December 16, 2003. Section 705(a) of the Veterans Benefits Act of 2003 amended 38 U.S.C. 6105(b)(2), Forfeiture for subversive activities, by adding certain offenses under title 18, United States Code, for which an individual forfeits his or her right to gratuitous benefits under the laws administered by the Secretary of Veterans Affairs. Section 6105(b)(2) as amended by the Veterans Benefits Act of 2003 applies to claims filed on or after December 17, 2003. Public Law 108-183, § 705(b), 117 Stat. 2672. VA's regulation regarding forfeiture of VA benefits for subversive activities is 38 CFR 3.903. This document amends § 3.903(a) to reflect the statutory change by adding 18 U.S.C. 175, 229, 831, 1091, 2332a, and 2332b to the current list of 18 U.S.C. sections cited in the regulation. Section 708(c) of the Veterans Benefits Act of 2003 amended various sections of title 38 of the United States Code to reflect the establishment of the Social Security Administration as an independent agency by replacing references to the Secretary of Health and Human Services with references to the Commissioner of Social Security, and striking “Department of Health and Human Services” and inserting “Social Security Administration” each time it appears in the provisions. This document amends 38 CFR 3.152(a), 3.153, and 3.714(f) to reflect the statutory changes. In a similar manner, this document amends 38 CFR 3.1(g)(4), to reflect that the Coast Guard is now under the jurisdiction of the Secretary of Homeland Security, not the Secretary of Transportation. *See* Homeland Security Act of 2002, Public Law 107-296, § 1704(d), 116 Stat. 2135, 2314. The authorizing statute for § 3.1(g)(4) is 38 U.S.C. 101(25)(D), which was amended by section 1704(d) of Public Law 107-296 to reflect that the Coast Guard is under the jurisdiction of the Secretary of Homeland Security. To ensure consistency with section 101(25)(D), we are amending the corresponding regulation, § 3.1(g)(4). Section 301 of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1311, Dependency and indemnity compensation to a surviving spouse, by adding subsection (e), which provides for a $250 increase in the monthly rate of dependency and indemnity compensation to which a surviving spouse with one or more children below the age of 18 is otherwise entitled. The increased rate is payable for the two-year period beginning on the date on which entitlement to dependency and indemnity compensation commenced. The increase ceases the first month after the month in which all children of the surviving spouse have attained the age of 18. The increase in dependency and indemnity compensation under section 1311(e) is applicable to payments beginning January 1, 2005. Public Law 108-454, § 301, 118 Stat. 3610. This document amends § 3.10(e) by adding § 3.10(e)(4) to reflect the statutory change. We note that the Veterans Benefits Act of 2003 added a different subsection

(e)to section 1311 than the subsection

(e)added by the Veterans Benefits Improvement Act of 2004. There is no indication that Congress intended to replace section 1311(e) as added by the Veterans Benefits Act of 2003 with section 1311(e) as added by the Veterans Benefits Improvement Act of 2004, and for the purposes of this rulemaking document, VA assumes that Congress intended to include both paragraphs designated as subsection

(e)in the statute. Section 302(a) of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1112(c) to provide that a radiation-exposed veteran's receipt of a payment under the Radiation Exposure Compensation Act of 1990 as amended (42 U.S.C. 2210 note)

(RECA)does not deprive such a veteran of receipt of VA compensation. Section 302(b) of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1310, Deaths entitling survivors to dependency and indemnity compensation, to provide that a person's receipt of a RECA payment does not deprive the person of receipt of dependency and indemnity compensation. However, the statutory amendment also provides for an offset of RECA payments against VA compensation awarded pursuant to 38 U.S.C. 1112(c)(1) and dependency and indemnity compensation. The statutory changes are applicable to compensation and dependency and indemnity compensation payments for months beginning after March 26, 2002. Public Law 108-454, § 302(c), 118 Stat. 3610. VA's regulation regarding RECA is 38 CFR 3.715. This document amends § 3.715 by adding paragraph (a)(1), which states that a RECA payment to a “radiation-exposed veteran,” as defined in 38 CFR 3.309(d)(3), does not bar payment of VA compensation to the veteran for months beginning after March 26, 2002. New § 3.715(b) provides that a person's receipt of a RECA payment does not bar the person's receipt of dependency and indemnity compensation for months beginning after March 26, 2002. Also, § 3.715(c) states: “Notwithstanding paragraph

(a)or (b), the amount of a RECA payment will be deducted from the amount of compensation payable pursuant to § 3.309(d) or the amount of dependency and indemnity compensation payable.” We have made one further amendment to 38 CFR 3.715 to correct an inconsistency with RECA, as amended. Section 6(e) of RECA states that, “[e]xcept as otherwise authorized by law, the acceptance of payment by an individual under this section shall be in full satisfaction of all claims of or on behalf of that individual against the United States * * * that arise out of exposure to radiation, from atmospheric nuclear testing, in the affected area (as defined in section 4(b)(1)) at any time during the period described in subsection (a)(1), (a)(2)(A), or (a)(2)(B) of section 4(a), exposure to radiation in a uranium mine, mill, or while employed in the transport of uranium ore or vanadium-uranium ore from such mine or mill at any time during the period described in section 5(a) or exposure to radiation as a result of onsite participation in a test involving the atmospheric detonation of a nuclear device.” Currently, 38 CFR 3.715 is broader than RECA. The RECA statute provides that RECA payments satisfy all further claims against the United States, including claims for VA compensation, arising out of exposure to radiation covered by that Act. Section 3.715, however, currently precludes payment of compensation for disability, no matter what the cause of the disease. We are therefore amending § 3.715 to make the regulation consistent with statute by adding paragraph (a)(2) to provide that payment of VA compensation to a veteran who is not a radiation-exposed veteran is barred only if the veteran's disability resulted from a disease that is attributable to exposure to radiation for which payments have been received under RECA. Section 303 of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1503, Determinations with respect to annual income, by adding subsection 1503(a)(11) to exclude lump-sum proceeds of a life insurance policy on a veteran from consideration as income for pension purposes. VA's regulation regarding exclusions from income for pension purposes is 38 CFR 3.272. This document amends § 3.272 by adding § 3.272(x) to reflect the statutory changes. New § 3.272(x) is applicable for periods on or after December 10, 2004. Section 304 of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1151, Benefits for persons disabled by treatment or vocational rehabilitation, by adding subsection (c), which states that a qualifying additional disability under section 1151 shall be treated as if it were a service-connected disability for purposes of entitlement to chapter 21 (specially adapted housing) and chapter 39 benefits (automobiles and adaptive equipment). This is an expansion of the benefits to which persons receiving compensation under section 1151 are entitled. This statutory amendment to 38 U.S.C. 1151 is applicable with respect to eligibility for these benefits and services on or after December 10, 2004. Public Law 108-454, § 304(b), 118 Stat. 3611. VA's regulation regarding automobiles and adaptive equipment is 38 CFR 3.808, Automobiles or other conveyances; certification. This document therefore amends § 3.808 to reflect the statutory change. To implement the statutory change, we are amending the introduction and paragraphs

(a)and

(b)in § 3.808. While the format of the current regulation is being amended for ease of use, we are making no substantive change to the content of the regulation, other than implementation of the statutory change. In this rulemaking, however, we are not amending 38 CFR 3.809, Specially adapted housing under 38 U.S.C. 2101(a), and 3.809a, Special home adaptation grants under 38 U.S.C. 2101(b), to reflect new 38 U.S.C. 1151(c)(1). We have decided to promulgate a separate rulemaking that will amend 38 CFR 3.809 and 3.809a to implement section 304 of the Veterans Benefits Improvement Act of 2004, as well as section 401 of the 2004 Act, which amended 38 U.S.C. 2101, which provides the eligibility criteria for chapter 21 benefits. In that rulemaking, we will also amend relevant regulations in part 36 of title 38, Code of Federal Regulations, to reflect these statutory amendments. Section 304(c) of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1151(b) by adding section 1151(b)(2) to provide that, where a judgment, settlement, or compromise of a claim specifically designates a portion of the award for the type of benefits provided under chapter 21 or 39 of title 38, United States Code, and VA later awards chapter 21 or 39 benefits, VA may reduce the amount of the chapter 21 or 39 benefits payable by the amount of benefits specifically designated for these purposes in the judgment, settlement, or compromise. Section 1151(b)(2) applies to a judgment, settlement, or compromise that became final on or after December 10, 2004. Section 1151(b)(2) also states that, if the amount received as a result of the judgment, settlement, or compromise is greater than the amount of the chapter 21 or 39 benefits, the excess amount received will be offset against benefits otherwise payable under 38 U.S.C. chapter 11. This document amends 38 CFR 3.362, Offsets under 38 U.S.C. 1151(b) of benefits awarded under 38 U.S.C. 1151 for claims filed on or after October 1, 1997, by adding § 3.362(e) and 38 CFR 3.800, Disability or death due to hospitalization, etc. for claims filed before October 1, 1997, by adding § 3.800(a)(4) to reflect the statutory changes with regard to chapter 39 benefits only. We will amend 38 CFR 3.362 and 3.800 to reflect new 38 U.S.C. 1151(b)(2) and (c)(1) regarding chapter 21 benefits in the separate rulemaking described above. Section 305 of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 5110, Effective date of awards, by removing the effective date restriction for death pension in section (d)(2), which required an application to be received within 45 days from the date of death for an effective date for an award of death pension to be the first day of the month in which the death occurred. The amendment allows the effective date for an award of death pension to be governed by the same rule as the effective date for an award of death compensation or dependency and indemnity compensation, which is that, if an application for death pension is received within one year from the date of death, the effective date of an award shall be the first day of the month in which the death occurred. VA's regulation regarding effective dates is 38 CFR 3.400. This document amends § 3.400(c)(3) by amending paragraphs (c)(3)(i) and

(ii)to reflect the statutory change. We have determined that amended paragraphs 3.400(c)(3)(i) and

(ii)are applicable to claims filed on or after December 10, 2004, the effective date of the Veterans Benefits Improvement Act of 2004. Section 306(b) of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1112, Presumptions relating to certain diseases and disabilities, by further defining a “radiation-risk activity” in section 1112(c)(3)(B)(iv) to include service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000, codified as amended at 42 U.S.C. 7348l(14). The amendment to section 1112(c)(3)(B) is effective as of March 26, 2002. VA's regulation regarding diseases subject to presumptive service connection for radiation-exposed veterans is 38 CFR 3.309(d). This document amends § 3.309(d)(3)(ii) by adding a new paragraph § 3.309(d)(3)(ii)(E) to reflect the statutory change. Administrative Procedure Act This final rule merely restates statutory provisions. Accordingly, there is a basis for dispensing with prior notice and comment and the delayed effective date provisions of 5 U.S.C. 553. Paperwork Reduction Act This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). Regulatory Flexibility Act The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this final rule and has concluded that it is a significant regulatory action because it may raise novel legal or policy issues. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam. Approved: April 25, 2006. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows: PART 3—ADJUDICATION Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows: Authority: 38 U.S.C. 501(a), unless otherwise noted. 2. Amend § 3.1(g)(4) by removing “Secretary of Transportation” and adding, in its place, “Secretary of Homeland Security”. 3. Amend § 3.10 by adding paragraph (e)(4) to read as follows: § 3.10 Dependency and indemnity compensation rate for a surviving spouse.

(e)* * *

(4)For a two-year period beginning on the date entitlement to dependency and indemnity compensation commenced, the dependency and indemnity compensation paid monthly to a surviving spouse with one or more children below the age of 18 shall be increased by the amount set forth in 38 U.S.C. 1311(e), regardless of the number of such children. The dependency and indemnity compensation payable under this paragraph is in addition to any other dependency and indemnity compensation payable. The increase in dependency and indemnity compensation of a surviving spouse under this paragraph shall cease beginning with the first month commencing after the month in which all children of the surviving spouse have attained the age of 18. (Authority: 38 U.S.C. 1311(e)) § 3.152 [Amended] 4. Amend § 3.152(a) by removing “Secretary of Health and Human Services” and adding, in its place, “Commissioner of Social Security”. § 3.153 [Amended] 5. Amend § 3.153 by removing “Secretary of Health, Education, and Welfare” and adding, in its place, “Commissioner of Social Security”. 6. Amend § 3.272 by adding paragraph

(x)immediately following the authority citation at the end of paragraph

(w)to read as follows: § 3.272 Exclusions from income.

(x)*Life insurance proceeds.* Lump-sum proceeds of any life insurance policy on a veteran. (Authority: 38 U.S.C. 1503(a)(11)) 7. Amend § 3.309 by adding paragraph (d)(3)(ii)(E) immediately following paragraph (d)(3)(ii)(D)(3) to read as follows: § 3.309 Disease subject to presumptive service connection.

(d)* * *

(3)* * *

(ii)* * *

(E)Service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384l(14)). 8. Amend § 3.362 by adding paragraph

(e)immediately following the last sentence at the end of paragraph

(d)to read as follows: § 3.362 Offset under 38 U.S.C. 1151(b) of benefits awarded under 38 U.S.C. 1151(a).

(e)*Offset of award of benefits under 38 U.S.C. chapter 39.*

(1)If a judgment, settlement, or compromise covered in paragraphs

(b)through

(d)of this section becomes final on or after December 10, 2004, and includes an amount that is specifically designated for a purpose for which benefits are provided under 38 U.S.C. chapter 39 (38 CFR 3.808), and if VA awards chapter 39 benefits after the date on which the judgment, settlement, or compromise becomes final, the amount of the award will be reduced by the amount received under the judgment, settlement, or compromise for the same purpose.

(2)If the amount described in paragraph (e)(1) of this section is greater than the amount of an award under 38 U.S.C. chapter 39, the excess amount received under the judgment, settlement, or compromise will be offset against benefits otherwise payable under 38 U.S.C. chapter 11. § 3.400 [Amended] 9. Amend § 3.400 by: a. In paragraph (c)(3)(i), adding “or on or after December 10, 2004,” following “October 1, 1984,”; and b. In paragraph (c)(3)(ii), removing “on or after October 1, 1984,” and adding, in its place, “between October 1, 1984, and December 9, 2004,”. 10. Amend § 3.714(f) by: a. Revising the paragraph heading. b. In the introductory text, by removing “Department of Health and Human Services” and adding, in its place, “Social Security Administration”. The revision reads as follows: § 3.714 Improved pension elections—public assistance beneficiaries.

(f)*Notification to the Social Security Administration.* * * * 11. Revise § 3.715 to read as follows: § 3.715 Radiation Exposure Compensation Act of 1990, as amended.

(a)*Compensation.*

(1)A radiation-exposed veteran, as defined in 38 CFR 3.309(d)(3), who receives a payment under the Radiation Exposure Compensation Act of 1990, as amended (42 U.S.C. 2210 note) (RECA), will not be denied compensation to which the veteran is entitled under 38 CFR 3.309(d) for months beginning after March 26, 2002.

(2)A veteran who is not a “radiation-exposed veteran,” as defined in 38 CFR 3.309(d)(3), is not entitled to VA compensation for disability caused by a disease that is attributable to exposure to radiation for which the veteran has received a payment under RECA.

(b)*Dependency and indemnity compensation.* A person who receives a payment under RECA based upon a veteran's death will not be denied dependency and indemnity compensation to which the person is entitled under 38 CFR 3.5 and 3.22 for months beginning after March 26, 2002.

(c)*Offset of RECA payment against VA benefits.* Notwithstanding paragraph

(a)or

(b)of this section, the amount of a RECA payment will be deducted from the amount of compensation payable pursuant to § 3.309(d) or the amount of dependency and indemnity compensation payable. (Authority: 38 U.S.C. 1112(c)(4), 1310(c); 42 U.S.C. 2210 note) 12. Amend § 3.800 by adding paragraph (a)(4) to read as follows: § 3.800 Disability or death due to hospitalization, etc.

(a)* * *

(4)*Offset of award of benefits under 38 U.S.C. chapter 39.*

(i)If a judgment, settlement, or compromise covered by paragraph (a)(2) of this section becomes final on or after December 10, 2004, and includes an amount that is specifically designated for automobile assistance benefits under 38 U.S.C. chapter 39 (38 CFR 3.808), and if VA awards chapter 39 benefits after the date on which the judgment, settlement, or compromise becomes final, the amount of the award will be reduced by the amount received under the judgment, settlement, or compromise for the same purpose.

(ii)If the amount described in paragraph (4)(i) of this section is greater than the amount of an award under 38 U.S.C. chapter 39, the excess amount received under the judgment, settlement, or compromise will be offset against benefits otherwise payable under 38 U.S.C. chapter 11. (Authority: 38 U.S.C. 1151(b)(2)) 13. Amend § 3.808 by: a. Removing the introductory text. b. Revising paragraph (a). c. Redesignating the paragraph (b)(1) introductory text as paragraph

(b)introductory text and revising it. d. Removing paragraph (b)(2). e. Redesignating former paragraphs (b)(1)(i) through (b)(1)(iv) as paragraphs (b)(1) through (b)(4), respectively. f. Removing the authority citations at the end of paragraphs

(c)and (d). g. Adding an authority citation at the end of paragraph (e)(3). The revisions and addition read as follows: § 3.808 Automobiles or other conveyances; certification.

(a)*Entitlement.* A certificate of eligibility for financial assistance in the purchase of one automobile or other conveyance in an amount not exceeding the amount specified in 38 U.S.C. 3902 (including all State, local, and other taxes where such are applicable and included in the purchase price) and of basic entitlement to necessary adaptive equipment will be provided to—

(1)A veteran who is entitled to compensation under chapter 11 of title 38, United States Code, for a disability described in paragraph

(b)of this section; or

(2)A member of the Armed Forces serving on active duty who has a disability described in paragraph

(b)of this section that is the result of an injury or disability incurred or disease contracted in or aggravated by active military, naval, or air service.

(b)* * * One of the following must exist:

(e)* * * (Authority: 38 U.S.C. 501(a), 1151(c)(2), 3902)). 14. Amend § 3.903 by: a. Redesignating paragraphs (a)(2) through (a)(4) as paragraphs (a)(3) through (a)(5), respectively. b. Adding a new paragraph (a)(2). The addition reads as follows: § 3.903 Subversive activities.

(a)* * *

(2)In title 18 U.S.C., sections 175, 229, 831, 1091, 2332a, and 2332b, for claims filed on or after December 17, 2003. 15. Amend § 3.1600 by: a. In paragraph (a), removing “Payment” in the last sentence and adding, in its place, “Except as provided in § 3.1604(d)(5), payment”. b. Revising paragraph

(f)introductory text. c. Redesignating paragraphs (f)(1) through (f)(5) as paragraphs (f)(2)(i) through (f)(2)(v), respectively. d. Adding a new paragraph (f)(1). e. Adding paragraph (f)(2) introductory text. The revision and additions read as follows: § 3.1600 Payment of burial expenses of deceased veterans.

(f)*Plot or interment allowance.* A plot or interment allowance is payable to the person or entity who incurred the expenses in an amount not to exceed the amount specified in 38 U.S.C. 2303(b) (or if the entitlement is under § 3.40

(c)or (d), an amount computed in accordance with the provisions of § 3.40(c)) if the following conditions are met:

(1)For claims filed on or after December 16, 2003:

(i)The deceased veteran is eligible for burial in a national cemetery;

(ii)The veteran is not buried in a national cemetery or other cemetery under the jurisdiction of the United States;

(iii)The applicable further provisions of this section and §§ 3.1601 through 3.1610.

(2)For claims filed before December 16, 2003: 16. Amend § 3.1604 by: a. Revising the authority citation at the end of paragraph (c). b. Revising paragraph (d)(1)(i). c. Adding paragraph (d)(5) following the authority citation at the end of paragraph (d)(4). The revisions and addition read as follows: § 3.1604 Payment from non-Department of Veterans Affairs sources.

(c)* * * (Authority: 38 U.S.C. 2303(b)(1)).

(d)* * *

(1)* * *

(i)The plot or interment allowance is payable based on the deceased veteran's eligibility for burial in a national cemetery (or, in claims filed prior to December 16, 2003, the deceased veteran's service). See § 38.620 of this chapter.

(5)A plot or interment allowance may be paid to a state in addition to a burial allowance under § 3.1600(a) for claims filed on or after December 16, 2003. [FR Doc. E6-12787 Filed 8-7-06; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R09-OAR-2006-AZ-0388; FRL-8206-4] Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; State of Arizona; Finding of Attainment for Rillito Particulate Matter of 10 Microns or Less (PM 10 ) Nonattainment Area; Determination Regarding Applicability of Certain Clean Air Act Requirements; Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to determine that the Rillito moderate PM 10 nonattainment area in Arizona attained the National Ambient Air Quality Standards for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM 10 ) by the applicable attainment date. EPA also finds that the Rillito area is currently attaining the PM 10 standards, and based on this latter finding, EPA is determining that certain Clean Air Act requirements are not applicable for so long as the Rillito area continues to attain the PM 10 standards. Lastly, EPA is correcting an error in a previous rulemaking that involved the classification of PM 10 nonattainment areas within the State of Arizona. DATES: This rule is effective on October 10, 2006, without further notice, unless EPA receives adverse comments by September 7, 2006. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-OAR-2006-AZ-0388 by one of the following methods: • Federal eRulemaking portal: *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • E-mail: *tax.wienke@epa.gov.* • Fax:

(415)947-3579 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • Mail: Wienke Tax, Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. • Hand Delivery: Wienke Tax, Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R09-OAR-2006-AZ-0388. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901,

(520)622-1622, *tax.wienke@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA. Table of Contents I. Background A. What National Ambient Air Quality Standards (NAAQS) Are Considered In Today's Finding? B. What Is The Designation and Classification of This PM 10 Nonattainment Area? C. How Do We Make Attainment Determinations? II. What Is The Basis for EPA's Determination That the Rillito Area Has Attained The PM 10 NAAQS? III. What Are the Applicable Planning Requirements For the Rillito Area as a Result of EPA's Attainment Determination? IV. EPA's Final Action V. Statutory and Executive Order Reviews I. Background A. What National Ambient Air Quality Standards (NAAQS) Are Considered In Today's Finding? National Ambient Air Quality Standards (NAAQS) are safety thresholds for certain ambient air pollutants set by EPA to protect public health and welfare. Particulate matter with an aerodynamic diameter of less than or equal to 10 micrometers, or PM 10 , is the subject of this action. PM 10 is among the ambient air pollutants for which EPA has established health-based standards. PM 10 causes adverse health effects by penetrating deep in the lungs, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable. On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for particulate matter with an indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers. See 40 CFR 50.6. The 24-hour primary PM 10 standard is 150 micrograms per cubic meter (μg/m3) with no more than one expected exceedance per year. The annual primary PM 10 standard is 50 μg/m3 as an annual arithmetic mean. The secondary PM 10 standards, promulgated to protect against adverse welfare effects, are identical to the primary standards. B. What Is the Designation and Classification of This PM 10 Nonattainment Area? Upon enactment of the 1990 Clean Air Act Amendments (CAA or the Act), PM 10 areas meeting the requirements of either

(i)or

(ii)of section 107(d)(4)(B) of the Act were designated nonattainment for PM 10 by operation of law and classified “moderate.” These areas included all former Group I PM 10 planning areas identified in 52 FR 29383 (August 7, 1987) and further clarified in 55 FR 45799 (October 31, 1990), and any other areas violating the NAAQS for PM 10 prior to January 1, 1989 (many of these areas were identified by footnote 4 in the October 31, 1990 **Federal Register** document). A **Federal Register** notice announcing the areas designated nonattainment for PM 10 upon enactment of the 1990 Act Amendments, known as “initial” PM 10 nonattainment areas, was published on March 15, 1991 (56 FR 11101). A subsequent **Federal Register** document correcting some of these areas was published on August 8, 1991 (56 FR 37654). These nonattainment designations and moderate area classifications were codified in 40 CFR part 81 in a **Federal Register** document published on November 6, 1991 (56 FR 56694). All other areas in the nation not designated nonattainment at enactment were designated unclassifiable (see section 107(d)(4)(B)(iii) of the Act). The Rillito planning area was among the areas listed by EPA as a Group I area (see 52 FR 29383, August 7, 1987) and was designated nonattainment for PM 10 by operation of law and classified “moderate.” In accordance with section 189(a)(2) of the CAA, Arizona was to submit a state implementation plan

(SIP)by November 15, 1991 demonstrating attainment of the PM 10 standards by December 31, 1994 for the Rillito area. 1 1 Arizona submitted a moderate area PM 10 plan for the Rillito area on November 14, 1991. EPA found this plan to be incomplete by letter dated May 14, 1992. On April 22, 1994, ADEQ submitted a revised PM 10 plan for Rillito, and EPA found it to be complete by letter dated August 18, 1994. EPA has not taken action on this 1994 PM 10 plan. C. How Do We Make Attainment Determinations? Pursuant to sections 179(c)(1) and 188(b)(2) of the Act, we have the responsibility of determining within six months of the applicable attainment date whether, based on air quality data, PM 10 nonattainment areas attained the NAAQS by that date. The “applicable attainment date” is December 31, 1994 for areas, such as Rillito, that were designated as “moderate” nonattainment for PM 10 by operation of law under the 1990 Amended Act. Determinations under section 179(c)(1) of the Act are to be based upon an area's “air quality as of the attainment date.” Section 188(b)(2) is consistent with this requirement. Generally, we will determine whether an area's air quality meets the PM 10 NAAQS for purposes of section 179(c)(1) and 188(b)(2) based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations

(NAMS)in the nonattainment area and entered into EPA's Air Quality System

(AQS)database. Data entered into the AQS have been determined to meet federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area provided that the stations meet the federal monitoring requirements for SLAMS. All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K. Attainment of the annual PM 10 standard is achieved when the annual arithmetic mean PM 10 concentration over a three-year period is equal to or less than 50 μg/m 3 . Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM 10 concentrations greater than 150 μg/m 3 . The 24-hour standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three-year period) is less than or equal to one. Three consecutive years of air quality data are necessary to show attainment of the 24-hour and annual standards for PM 10 . See 40 CFR part 50, appendix K. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is composed of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days. II. What Is the Basis for EPA's Determination That the Rillito Area Has Attained the PM 10 NAAQS? The Rillito PM 10 nonattainment area is located in north central Pima County, just northwest of the Tucson metropolitan area in southern Arizona. 2 The nonattainment area encompasses the following nine townships: T11S, R9E through R12E; and T12S, R8E through R12E. The incorporated Town of Marana with a population of approximately 8,000 is located within the nonattainment area. A smaller community, the unincorporated town of Rillito, is located in the portion of the nonattainment area historically associated with maximum ambient PM 10 concentrations. The land use around Rillito is predominantly agricultural. The only major (i.e., greater than 100 tons per year) stationary point source of air pollution in the nonattainment area is an Arizona Portland Cement

(APC)plant. APC is permitted by ADEQ. Most of the other stationary sources are sand and gravel operations mining the alluvial deposits of the Santa Cruz River basin. The area in and around the nonattainment area is expected to change from rural agricultural to residential because it will absorb residential development from the Tucson metropolitan area. 2 In a 1996 rulemaking (61 FR 21372, May 10, 1996) in which we found that the Phoenix Planning Area had not attained the PM 10 NAAQS by the applicable attainment date for moderate PM 10 nonattainment areas and thus reclassified the area as “serious”, we inadvertently introduced an error into the “Arizona—PM-10” table in 40 CFR 81.303 by moving the entry for the Rillito planning area from Pima County to Santa Cruz County. We are correcting this error in today's notice under CAA section 110(k)(6). The Rillito PM 10 nonattainment area has one SLAMS monitor operated by the Arizona Department of Environmental Quality (ADEQ). Located at 8820 West Water Street within the community of Rillito, this monitor is approximately 0.5 miles northwest of the Arizona Portland Cement plant. This monitor was selected by ADEQ to represent maximum PM 10 concentration in the area to which the public is exposed. Table 1 summarizes the one-in-six day PM 10 data collected there from 1988-2005. Table 1.—Summary of 24 Hour and Annual PM 10 Concentrations (μg/m 3 ) for Rillito, 1988-2005 Year PM 10 Concentrations Maximum 24-hour concentration Annual average 3-year annual average 1988 163 *69.2 NA 1989 170 *83.3 NA 1990 94 *39.0 *63.8 1991 133 37.1 *53.1 1992 96 33.6 * 36.6 1993 68 27.6 32.8 1994 63 28.3 29.8 1995 91 36.2 30.7 1996 84 38.3 34.3 1997 129 41.9 38.8 1998 81 32.4 37.5 1999 102 37.8 37.4 2000 129 * 42.1 * 37.4 2001 89 33.6 * 37.8 2002 70 37.1 * 37.6 2003 118 39.5 36.7 2004 93 32.2 36.3 2005 84 39.1 36.9 * Indicates that the mean does not satisfy criteria for a complete data set. * Values shown in bold text represent exceedances of the applicable standard. As noted above, the 24-hour PM 10 standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three-year period) is less than or equal to one. Based on the data summarized in table 1, above, we find no exceedances of the 24-hour PM 10 standard for the 1992-1994 period and thus the expected number of days with levels above 150 μg/m 3 (averaged over that three-year period) is zero. As such, we find that Rillito attained the 24-hour PM 10 NAAQS by the applicable attainment date (1994). Furthermore, since 1994, no exceedances of the 24-hour PM 10 standard have been recorded at the Rillito monitoring station and thus, we find that the area has continued to attain, and is currently attaining, the 24-hour standard. Also as noted above, attainment of the annual PM 10 standard is achieved when the annual arithmetic mean PM 10 concentration over a three-year period is equal to or less than 50 μg/m 3 . Review of the data for calendar years 1992-1994 reveals an arithmetic average of 29.8 μg/m 3 . As such, we find that Rillito attained the annual PM 10 standard by the applicable attainment date (1994). Since 1994, there have been no exceedances of the annual PM 10 standard, and thus, we find that the area has continued to attain, and is currently attaining, the annual standard. III. What Are The Applicable Planning Requirements For The Rillito Area As A Result Of EPA's Attainment Determination? The air quality planning requirements for moderate PM 10 nonattainment areas, such as the Rillito nonattainment area, are set out in part D, subparts 1 and 4 of title I of the Act. We have issued guidance in a General Preamble 3 describing how we will review SIPs and SIP revisions submitted under title I of the Act, including those containing moderate PM 10 nonattainment area SIP provisions. 3 “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992, as supplemented 57 FR 18070, April 28, 1992). In some designated nonattainment areas, monitored data demonstrates that the NAAQS has already been achieved. Based on its interpretation of the Act, EPA has determined that certain requirements of part D, subparts 1 and 2 (of title I) of the Act do not apply and therefore do not require certain submissions for an area that has attained the NAAQS. These include reasonable further progress

(RFP)requirements, attainment demonstrations and contingency measures, because these provisions have the purpose of helping achieve attainment of the NAAQS. EPA's Clean Data Policy is the subject of two memoranda setting forth our interpretation of the provisions of the Act as they apply to areas that have attained the relevant NAAQS. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part of its “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71645-71646 (November 29, 2005). EPA believes that the legal bases set forth in detail in our Phase 2 Final Rule; our May 10, 1995 memorandum from John S. Seitz, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (Seitz memo); and our December 14, 2004 memorandum from Stephen D. Page entitled “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (Page memo) are equally pertinent to the interpretation of provisions of subparts 1 and 4 applicable to PM 10 . EPA's interpretation of how the provisions of the Act apply to areas with “clean data” is not logically limited to ozone and PM 2.5 , because the rationale is not dependent upon the type of pollutant. Our interpretation that an area that is attaining the standard is relieved of obligations to demonstrate RFP and to provide an attainment demonstration and contingency measures pursuant to part D of the CAA, pertains whether the standard is PM 10 , ozone, or PM 2.5 . The reasons for relieving an area that has attained the relevant standard of certain part D, subparts 1 and 2 obligations, applies equally to part D, subpart 4, which contains specific attainment demonstration and RFP provisions for PM 10 nonattainment areas. As we have explained in the Phase 2 Final Rule and our ozone and PM 2.5 clean data memoranda, EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions if an area subject to those requirements is already attaining the NAAQS ( *i.e.* , attainment of the NAAQS is demonstrated with three consecutive years of complete, quality-assured air quality monitoring data). Three U.S. Circuit Courts of Appeals have upheld EPA rulemakings applying its interpretation of subparts 1 and 2 with respect to ozone. *Sierra Club* v. *EPA* , 99 F.3d 1551 (10th Cir. 1996); *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004); *Our Children's Earth Foundation* v. *EPA* , No. 04-73032 (9th Cir. June 28, 2005)(memorandum opinion). It has been EPA's longstanding interpretation that the general provisions of part D, subpart 1 of the Act (sections 171 and 172) do not require the submission of SIP revisions concerning RFP for areas already attaining the ozone NAAQS. In the General Preamble, we stated: [R]equirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point. 57 FR at 13564. EPA believes the same reasoning applies to the PM 10 provisions of part D, subpart 4. With respect to RFP, section 171(1) states that, for purposes of part D of title I, RFP “means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.” Thus, whether dealing with the general RFP requirement of section 172(c)(2), the ozone-specific RFP requirements of sections 182(b) and (c), or the specific RFP requirements for PM 10 areas of part D, subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure attainment by the applicable attainment date. Section 189(c)(1) states that: Plan revisions demonstrating attainment submitted to the Administrator for approval under this subpart shall contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress, as defined in section 7501(1) of this title, toward attainment by the applicable date. Although this section states that revisions shall contain milestones which are to be achieved until the area is redesignated to attainment, such milestones are designed to show reasonable further progress “toward attainment by the applicable attainment date”, as defined by section 171. Thus, it is clear that once the area has attained the standard, no further milestones are necessary or meaningful. This interpretation is supported by language in section 189(c)(3), which mandates that a state that fails to achieve a milestone must submit a plan that assures that the state will achieve the next milestone or attain the NAAQS if there is no next milestone. Section 189(c)(3) assumes that the requirement to submit and achieve milestones does not continue after attainment of the NAAQS. If an area has in fact attained the standard, the stated purpose of the RFP requirement will have already been fulfilled. 4 EPA took this position with respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the May 10, 1995 memorandum with respect to the requirements of sections 182(b) and (c). We are extending that interpretation to the specific provisions of part D, subpart 4. In the General Preamble, we stated, in the context of a discussion of the requirements applicable to the evaluation of requests to redesignate nonattainment areas to attainment, that the “requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point.” (57 FR 13564). See also our September 4, 1992 memorandum from John Calcagni, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (Calcagni memo), p. 6. 4 Thus we believe that it is a distinction without a difference that section 189(c)(1) speaks of the RFP requirement as one to be achieved until an area is “redesignated attainment”, as opposed to section 172(c)(2), which is silent on the period to which the requirement pertains, or the ozone nonattainment area RFP requirements in sections 182(b)(1) or 182 (c)(2), which refer to the RFP requirements as applying until the “attainment date”, since, section 189(c)(1) defines RFP by reference to section 171(1) of the Act. Reference to section 171(1) clarifies that, as with the general RFP requirements in section 172(c)(2) and the ozone-specific requirements of section 182(b)(1) and 182(c)(2), the PM-specific requirements may only be required “for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” 42 U.S.C. section 7501(1). As discussed in the text of this rulemaking, EPA interprets the RFP requirements, in light of the definition of RFP in section 171(1), and incorporated in section 189(c)(1), to be a requirement that no longer applies once the standard has been attained. With respect to the attainment demonstration requirements of section 189(a)(1)(B), an analogous rationale leads to the same result. Section 189(a)(1)(B) requires that the plan provide for “a demonstration (including air quality modeling) that the [SIP] will provide for attainment by the applicable attainment date. * * *” As with the RFP requirements, if an area is already monitoring attainment of the standard, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of the section 172(c) requirements provided by EPA in the General Preamble, the Page memo, and the section 182(b) and

(c)requirements set forth in the Seitz memo. As EPA stated in the General Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached.” (57 FR at 13564). Other SIP submission requirements are linked with these attainment demonstration and RFP requirements, and similar reasoning applies to them. These requirements include the contingency measure requirements of sections 172(c)(9) and 182(c)(9). We have interpreted the contingency measure requirements of sections 172(c)(9) and 182(c)(9) as no longer applying when an area has attained the standard because those “contingency measures are directed at ensuring RFP and attainment by the applicable date.” (57 FR at 13564); Seitz memo, pp. 5-6. Both sections 172(c)(1) and 189(a)(1)(C) require “provisions to assure that reasonably available control measures” ( *i.e.* , RACM) are implemented in a nonattainment area. The General Preamble, 57 FR at 13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so that RACM requirements are a “component” of an area's attainment demonstration. Thus, for the same reason the attainment demonstration no longer applies by its own terms, the requirement for RACM no longer applies. EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could contribute to reasonable further progress or to attainment. General Preamble, 57 FR at 13498. Thus, where an area is already attaining the standard, no additional RACM measures are required. 5 EPA is interpreting section 189(a)(1)(C) consistent with its interpretation of section 172(c)(1). 5 The EPA's interpretation that the statute only requires implementation of RACM measures that would advance attainment was upheld by the United States Court of Appeals for the Fifth Circuit ( *Sierra Club* v. *EPA* , 314 F.3d 735, 743-745 (5th Cir. 2002), and by the United States Court of Appeals for the D.C. Circuit ( *Sierra Club* v. *EPA* , 294 F.3d 155, 162-163 (D.C. Cir. 2002)). Here, as in both our Phase 2 Final Rule and ozone and PM 2.5 clean data memoranda, we emphasize that the suspension of a requirement to submit SIP revisions concerning these RFP, attainment demonstration, RACM, and other related requirements exists only for as long as a nonattainment area continues to monitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the requirements being suspended would no longer exist. Therefore, the area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need not submit one of the SIP submittals amounts to no more than a suspension of the requirements for so long as the area continues to attain the standard. However, once EPA ultimately redesignates the area to attainment, the area will be entirely relieved of these requirements to the extent the maintenance plan for the area does not rely on them. Therefore, we believe that, for the reasons set forth here and established in our prior “clean data” memoranda and rulemakings, a PM 10 nonattainment area that has “clean data,” should be relieved of the part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), and the RFP provisions established by section 189(c)(1) of the Act, as well as the aforementioned attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. 6 6 In prior rulemakings involving the Clean Data Policy and PM 10 , EPA has applied criteria in addition to that of attainment of the standard. See, *e.g.* , 67 FR 43020 (June 26, 2002). EPA does not believe that those additional criteria are required by statute or are necessary for application of the policy for PM 10 areas, and does not employ them in applying the policy to ozone and PM 2.5 areas. EPA intends to make its application of the policy consistent for ozone, PM 10 , and PM 2.5 , and does not intend to require an area to meet additional criteria for PM 10 . Should EPA at some future time determine that an area that had clean data, but which has not yet been redesignated as attainment for a NAAQS, has violated the relevant standard, the area would again be required to submit the pertinent requirements under the SIP for the area. Attainment determinations under the policy do not shield an area from other required actions, such as provisions to address pollution transport. As set forth above, EPA finds that because the Rillito area has continued to attain the NAAQS, the requirement of an attainment demonstration, reasonable further progress, reasonably available control measures and contingency measures no longer applies for so long as the area continues to monitor attainment of the PM 10 NAAQS. If measurements of ambient PM 10 concentration in the Rillito area reveal a violation of the PM 10 NAAQS, then the State of Arizona would again be required to submit the pertinent CAA requirements for this nonattainment area. 7 7 Note, however, that on January 17, 2006, EPA published proposed revisions to the NAAQS for particulate matter. See *http://www.epa.gov/fedrgstr/EPA-AIR/2006/January/Day-17/.* The proposed revisions address two categories of particulate matter: fine particles which are particles 2.5 micrometers in diameter and smaller; and “inhalable coarse” particles which are particles between 2.5 and 10 micrometers (PM 10-2.5 ). Upon finalization of a primary 24-hour standard for PM 10-2.5 , EPA proposes to revoke the current 24-hour PM 10 standard in all areas of the country except in areas where there is at least one monitor located in an urbanized area (as defined by the U.S. Bureau of the Census) with a minimum population of 100,000 that violates the current 24-hour PM 10 standard based on the most recent three years of data. In addition, EPA proposes to revoke the current annual PM 10 standard upon finalization of a primary 24-hour standard for PM 10-2.5. IV. EPA's Final Action Based on quality-assured data meeting the requirements of 40 CFR part 50, appendix K, we find that the Rillito, Arizona nonattainment area attained the PM 10 NAAQS by the applicable attainment date

(1994)and is currently attaining the standard. This action is not a redesignation to attainment under CAA section 107(d)(3) because we have not yet approved a maintenance plan as meeting the requirements of section 175A of the CAA or determined that the area has met the other CAA requirements for redesignation. The classification and designation status in 40 CFR part 81 will remain moderate nonattainment for this area until such time as Arizona meets the CAA requirements for redesignation of the Rillito area to attainment. See footnote 7. EPA also finds that, because the Rillito area has continued to attain the NAAQS, the following CAA requirements no longer apply: The part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), the RFP provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. Lastly, under CAA section 110(k)(6), we are correcting the entry for the Rillito moderate PM 10 nonattainment area in the “Arizona—PM-10” table in 40 CFR 81.303 so that it is identified as a subarea within Pima County instead of Santa Cruz County. We are publishing this rule without prior proposal because the Agency views this as a noncontroversial action 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 should adverse comments be filed. This action will be effective October 10, 2006, without further notice unless the EPA receives relevant adverse comments by September 7, 2006. If we receive such comments, then we 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. We 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 October 10, 2006 and no further action will be taken on the proposed rule. V. Statutory and Executive Order Reviews 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 makes a determination based on air quality data and does not impose any additional requirements. 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 does not impose any additional enforceable duty, 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 97249,* 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 makes a determination based on air quality data and does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 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).) List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: July 25, 2006. Wayne Nastri, Regional Administrator, Region 9. Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart C—[Amended] 2. In § 81.303, the table entitled “Arizona—PM-10” is amended by revising the entries for Santa Cruz County and Pima County to read as follows: § 81.303 Arizona. Arizona.—PM-10 Designated area Designation Date Type Classification Date Type * * * * * * * Santa Cruz County: Nogales planning area 11/15/90 Nonattainment 11/15/90 Moderate. The portions of the following Townships which are within the State of Arizona and lie east of 111 degrees longitude: T23S, R13E, T23S, R14E, T24S, R13E, T24S, R14E Pima County: Rillito planning area 11/15/90 Nonattainment 11/15/90 Moderate. Townships: T11S, R9E, T11S, R10E, T11S, R11E, T11S, R12E, T12S, R8E, T12S, R9E, T12S, R10E, T12S, R11E, T12S, R12E Ajo planning area 11/15/90 Nonattainment 11/15/90 Moderate. Township T12S, R6W, and the following sections of Township T12S, R5W: a. Sections 6-8 b. Sections 17-20, and c. Sections 29-32 * * * * * * * [FR Doc. E6-12756 Filed 8-7-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF DEFENSE 48 CFR Parts 204 and 253 [DFARS Case 2005-D004] Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Contract Reporting AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update text addressing DoD requirements for reporting of contracting actions. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS. DATES: *Effective Date:* August 8, 2006. FOR FURTHER INFORMATION CONTACT: Mr. Bill Sain, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone

(703)602-0293; facsimile

(703)602-0350. Please cite DFARS Case 2005-D004. SUPPLEMENTARY INFORMATION: A. Background DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at *http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.* This final rule is a result of the DFARS Transformation initiative. The rule removes DFARS text addressing internal DoD requirements for reporting of contracting actions. These requirements have been relocated to the DFARS companion resource, Procedures, Guidance, and Information (PGI), available at *http://www.acq.osd.mil/dpap/dars/pgi.* This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2005-D004. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Parts 204 and 253 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 204 and 253 are amended as follows: 1. The authority citation for 48 CFR parts 204 and 253 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR chapter 1. PART 204—ADMINISTRATIVE MATTERS 2. Subpart 204.6 is revised to read as follows: Subpart 204.6—Contract Reporting 204.670 Contract action reporting requirements. Departments and agencies shall report contracting actions in accordance with the requirements at PGI 204.670. PART 253—FORMS 3. Section 253.204-70 is revised to read as follows: 253.204-70 DD Form 350, Individual Contracting Action Report. Follow the instructions at PGI 253.204-70 for completion of DD Form 350. 253.204-71 [Removed] 4. Section 253.204-71 is removed. [FR Doc. E6-12783 Filed 8-7-06; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 219 [DFARS Case 2003-D060] Defense Federal Acquisition Regulation Supplement; Threshold for Small Business Specialist Review AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise text pertaining to DoD implementation of small business programs. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS. DATES: *Effective Date:* August 8, 2006. FOR FURTHER INFORMATION CONTACT: Ms. Deborah Tronic, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone

(703)602-0289; facsimile

(703)602-0350. Please cite DFARS Case 2003-D060. SUPPLEMENTARY INFORMATION: A. Background DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at *http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.* This final rule is a result of the DFARS Transformation initiative. The rule— ○ Deletes an unnecessary general policy statement at DFARS 219.201(a); ○ Revises DFARS 219.201(d)(10)(A) to eliminate mandatory requirements for small business specialists to review proposed acquisitions that are under $100,000 and totally set aside for small business concerns; ○ Revises DFARS 219.201(d)(10)(C) for consistency with the procedures at FAR 19.402(a), regarding referral of small business matters to the appropriate party when a Small Business Administration procurement center representative is not assigned to a contracting activity (added at 71 FR 36925, June 28, 2006 (FAC 2005-10)); and ○ Deletes text at DFARS 219.201(e) regarding the appointment and functions of DoD small business specialists. Text on this subject has been relocated to the DFARS companion resource, Procedures, Guidance, and Information (PGI), available at *http://www.acq.osd.mil/dpap/dars/pgi.* DoD published a proposed rule at 69 FR 21997 on April 23, 2004. Five sources submitted comments on the proposed rule. A discussion of the comments is provided below. 1. *Comment: Review of Task Orders.* One respondent stated that the proposed language at 219.201(d)(10)(A) *(1)* , “Within the scope and under the terms of the existing contract,” will not provide for a review of proposed task orders under multiple award contracts. This will preclude small business specialist efforts to steer requirements toward multiple award contracts set aside for small businesses. *DoD Response:* DoD agrees that task orders should not be excluded from small business specialist review. The phrase “Within the scope and under the terms of the existing contract” has been eliminated from the final rule to make it clear that acquisitions being accomplished through placement of task orders are not excluded from small business specialist review. In addition, the phrase “including orders placed against Federal Supply Schedule contracts,” has been added to 219.201(d)(10)(A) to reinforce this requirement. The wording in the proposed rule had been intended to clarify that modifications to a contract that did not increase the scope of the contract, such as change of address or incremental funding actions, need not be reviewed by the small business specialist. Modifications that increase the scope of a contract or order would, however, be reviewed since these are considered to be acquisitions. 2. *Comment: Opportunities for Participation in Actions Between $10,000 and $100,000.* Three respondents stated that actions between $10,000 and $100,000 provide significant opportunities for 8(a), HUBZone, and service-disabled veteran-owned small business concerns; and that the proposed rule does not provide small business specialists with an opportunity to review actions that have been set aside for small businesses to identify potential requirements for 8(a), HUBZone, or service-disabled veteran-owned small business concerns. *DoD Response:* The language in the final rule does not preclude agencies from having a small business specialist review and make recommendations for acquisitions that are totally set aside for small businesses. The rule is intended to permit small business specialist resources to be focused on acquisitions where input from the small business specialist would be of the most benefit to an agency. An agency still may have its small business specialist review total small business set-asides if the agency believes this is necessary to assist contracting officers in identifying opportunities appropriate for particular categories of small businesses. By not requiring that all total small business set-asides over $10,000 be reviewed, the DFARS rule provides needed flexibility. 3. *Comment: Movement of DFARS Text.* One respondent suggested that movement of DFARS text to PGI creates the perception of a reduced emphasis upon or weakening of the current small business programs. *DoD Response:* The movement of procedural or informational text from DFARS to PGI is intended to improve the acquisition process by facilitating more efficient change to internal DoD requirements. DoD believes that the changes in this rule are in keeping with numerous other revisions to the DFARS involving movement of text into PGI and, when viewed in the aggregate, do not foster the perception of weakening the commitment to small business programs. 4. *Comment: 8(a) Program Participants.* One respondent recommended that DoD add language to PGI 219.201(e)(vii) to highlight the prohibition against participation by brokers in the 8(a) Program. *DoD Response:* DFARS 219.201(e)(vii) addresses negotiation and administration of small business subcontracting plans. An 8(a) firm is not required to have a small business subcontracting plan. The clauses in the contract between the Small Business Administration and the 8(a) firm govern the conditions under which the 8(a) firm can subcontract work. 5. *Comment: Concurrence with the Change.* One respondent stated that small business specialist review of actions set aside for small business concerns or placed against another contract is an unnecessary step in the process, and that small business specialists could use their time to better advantage. *DoD Response:* Noted. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule pertains to internal DoD procedures for the implementation of small business programs. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Part 219 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 219 is amended as follows: PART 219—SMALL BUSINESS PROGRAMS 1. The authority citation for 48 CFR Part 219 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. 2. Section 219.201 is amended as follows: a. By removing paragraph (a); and b. By revising paragraphs (d)(10) and

(e)to read as follows: 219.201 General policy.

(d)* * *

(10)Contracting activity small business specialists perform this function by—

(A)Reviewing and making recommendations for all acquisitions (including orders placed against Federal Supply Schedule contracts) over $10,000, except those under $100,000 that are totally set aside for small business concerns in accordance with FAR 19.502-2. Follow the procedures at PGI 219.201(d)(10) regarding such reviews;

(B)Making the review before issuance of the solicitation or contract modification and documenting it on DD Form 2579, Small Business Coordination Record; and

(C)Referring recommendations that have been rejected by the contracting officer to the Small Business Administration

(SBA)procurement center representative. If an SBA procurement center representative is not assigned, see FAR 19.402(a).

(e)For information on the appointment and functions of small business specialists, see PGI 219.201(e). [FR Doc. E6-12781 Filed 8-7-06; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 242 [DFARS Case 2003-D051] Defense Federal Acquisition Regulation Supplement; Contract Administration Functions AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update text addressing functions performed by DoD contract administration offices. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS. DATES: *Effective Date:* August 8, 2006. FOR FURTHER INFORMATION CONTACT: Ms. Deborah Tronic, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone

(703)602-0289; facsimile

(703)602-0350. Please cite DFARS Case 2003-D051. SUPPLEMENTARY INFORMATION: A. Background DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at *http://www.acq.osd.mil/dpap/dars/dfars/transformation/index.htm.* This final rule is a result of the DFARS Transformation initiative. The rule revises the list of contract administration functions at DFARS 242.302 to— ○ Clarify responsibilities for payment administration and for verification of contractor compliance with earned value management system requirements; ○ Delete obsolete text on mobilization production planning surveys; and ○ Delete procedures for designation of contract payment offices. Text on this subject has been relocated to the DFARS companion resource, Procedures, Guidance, and Information (PGI), available at *http://www.acq.osd.mil/dpap/dars/pgi.* DoD published a proposed rule at 70 FR 67955 on November 9, 2005. One respondent submitted comments on the proposed rule. The respondent stated that

(1)there is a lack of clear regulatory authority for acceptance other than FAR 46.502, which assigns acceptance responsibility to contracting officers;

(2)acceptance is not one of the contract administration functions at FAR 42.302; and

(3)FAR 46.502, where it refers to delegation of responsibility for acceptance to a contract administration office, errs in its reference to FAR 42.202(g), since refusal of a contract administration delegation is exclusive of actions inferred in performing acceptance when an administration office is assigned. The respondent recommended that, since acceptance actions can be performed on behalf of a contracting officer when a contract is not assigned for administration (e.g., destination acceptance) by an activity other than a contract administration office, DFARS 242.302 should provide coverage of acceptance responsibility when a contracting officer intends that a contract administration office perform acceptance. DoD does not agree that DFARS 242.302 should be amended to provide coverage of acceptance responsibility when a contracting officer intends that a contract administration office perform acceptance. FAR 42.302 lists the functions that are normally delegated to a contract administration office. Even though acceptance is not specifically mentioned, it is covered under FAR 42.302(a)(38), which provides for ensuring contractor compliance with contractual quality assurance requirements and references FAR Part 46. In particular, FAR 46.502 provides for delegation of responsibility for acceptance to a contract administration office. However, DoD recognizes that there are times when a contract administration office has been assigned responsibility for ensuring contractor compliance with contract quality assurance requirements, but where actual product acceptance is performed by an activity other than the contract administration office (i.e., destination acceptance). DoD has established a separate DFARS Case, 2005-D024, to address this situation. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq* ., because the rule addresses internal DoD responsibilities for performance of contract administration functions. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Part 242 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 242 is amended as follows: PART 242—CONTRACT ADMINISTRATION AND AUDIT SERVICES 1. The authority citation for 48 CFR Part 242 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. 2. Section 242.302 is revised to read as follows: 242.302 Contract administration functions. (a)(4) Also, review and evaluate—

(A)Contractor estimating systems (see FAR 15.407-5); and

(B)Contractor material management and accounting systems under subpart 242.72.

(7)See 242.7502 for ACO responsibilities with regard to receipt of an audit report identifying significant accounting system or related internal control deficiencies.

(9)For additional contract administration functions related to IR&D/B&P projects performed by major contractors, see 242.771-3(a).

(12)Also perform all payment administration in accordance with any applicable payment clauses. (13)(A) Do not delegate the responsibility to make payments to the Defense Contract Management Agency (DCMA).

(B)Follow the procedures at PGI 242.302(a)(13)(B) for designation of payment offices.

(39)See 223.370 for contract administration responsibilities on contracts for ammunition and explosives.

(67)Also support program offices and buying activities in precontractual efforts leading to a solicitation or award. (S-70) Serve as the single point of contact for all Single Process Initiative

(SPI)Management Council activities. The ACO shall negotiate and execute facilitywide class modifications and agreements for SPI processes, when authorized by the affected components. (S-71) DCMA has responsibility for reviewing earned value management system

(EVMS)plans and for verifying initial and continuing contractor compliance with DoD EVMS criteria. The contracting officer shall not retain this function. (b)(S-70) Issue, negotiate, and execute orders under basic ordering agreements for overhaul, maintenance, and repair. [FR Doc. E6-12778 Filed 8-7-06; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 171 [Docket No. PHMSA-2005-22208 (HM-240)] RIN 2137-AE12 Hazardous Materials: Incorporation of Statutorily Mandated Revisions to the Hazardous Materials Regulations; Correction AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule; correction. SUMMARY: On December 9, 2005, PHMSA published a final rule to revise terminology, definitions, and requirements for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005. These amendments included revising the definitions of “hazmat employee” and “hazmat employer”; modifying shipping paper retention requirements; providing a security plan exception for farmers; and replacing the term “Exemption” with “Special permit.” This final rule corrects an error in the final rule. In addition, we are clarifying the amendments applicable to shipping paper retention requirements, the definition of “hazmat employer,” and the transition from “Exemption” to “Special permit.” DATE: *Effective date:* August 8, 2006. FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite or Kurt Eichenlaub, Office of Hazardous Materials Standards,

(202)366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Background On December 9, 2005, the Pipeline and Hazardous Materials Safety Administration (PHMSA, we) published a final rule under Docket No. PHMSA-2005-22208 (HM-240) revising the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to reflect amendments made to the Federal hazardous materials law (Federal hazmat law; 49 U.S.C. 5101 *et seq.* ) by the Hazardous Materials Safety and Security Reauthorization Act of 2005 (the Act; Title VII of Pub. L. 109-59, 119 Stat. 1144 (August 10, 2005)). The December 9, 2005 final rule made the following amendments to the HMR: • Revised the definitions of “hazmat employee” and “hazmat employer”; • Revised shipping paper retention requirements; • Added a security plan exception for farmers; • Revised applicability of the HMR to matter subject to postal laws and regulations; and • Replaced “Exemption” with “Special permit.” We received a number of questions from the regulated community concerning the amendments in the final rule applicable to the revised definition of “hazmat employer”, new shipping paper retention requirements, and the transition from “Exemption” to “Special permit.” To ensure our responses to these questions reach a broad audience, we are addressing them in this final rule. II. Clarifications A. Definition of “Hazmat Employer” We revised the definition of “hazmat employer” in § 171.8 for consistency with editorial revisions adopted under the Act. The revised definition is not intended to apply more broadly than the previous definition. The amendment does not expand the scope of the definition or revise the training requirements applicable to hazmat employers in subpart H of part 172 or the operational requirements applicable to training in parts 173-180 of the HMR. B. Revision of Shipping Paper Retention Requirements In accordance with the Act, we revised the HMR to require shippers to retain a copy of a shipping paper for a period of two years after the shipping paper is provided to a carrier and to require carriers to retain a copy of a shipping paper for a period of one year after the date the shipping paper is received from the shipper. We also specified that shippers and carriers of a hazardous waste must continue to retain a shipping paper for 3 years after the material is accepted by the initial carrier. PHMSA is aware of confusion in the regulated community regarding the implementation of these provisions. The provisions for shipping paper retention in this rulemaking became effective on January 9, 2006 (the effective date of the final rule). It was not our intention to apply the revised shipping paper retention requirements retroactively to documents retained for shipments made prior to the effective date of the final rule. Shipments offered or accepted for transportation prior to January 9, 2006 are not subject to the new shipping paper retention provisions. For shipments offered or accepted for transportation prior to January 9, 2006, each person who provides a shipping paper and each person who receives a shipping paper must retain a copy of the shipping paper or an electronic image thereof for 375 days after the shipment is accepted by the initial carrier. For shipments offered or accepted for transportation on or after January 9, 2006, each person who provides a shipping paper must retain a copy of the shipping paper or an electronic image thereof for two years after the shipment is accepted by the initial carrier; each person who receives a shipping paper must retain a copy of the shipping paper or an electronic image thereof for one year after the shipment is accepted by the initial carrier. C. Conversion of Exemptions to Special Permits The final rule adopted amendments to replace most of the references in the HMR to the term “exemption” with “special permit.” See §§ 171.1, 171.2, 171.6, 171.8, 172.102, 172.203, 172.301, 172.302, 173.22, 173.22a, 173.124, 173.301, 173.403, 175.33, 176.31, 178.3, 179.3, 179.4, 180.3, 180.201, 180.205, 180.209, 180.213, and 180.215. In addition, we adopted the following revisions to the HMR to address the transition to special permits: —Current exemptions will be effective until they expire, are terminated, or become due for renewal. Current exemptions will be replaced by special permits at the time when a renewal application is approved by the Associate Administrator. See definition of “Special permit” in § 171.8. —Packagings and shipping papers prepared in accordance with a new special permit issued on or after October 1, 2005 must be marked with “DOT-SP” and the appropriate special permit number, unless otherwise specified by the special permit. However, packagings and shipping papers previously marked “DOT-E” in accordance with a current exemption generally may continue in use so long as the provisions in the exemption remain valid. See §§ 172.203, 172.302, and 173.23. —An initial special permit will be valid for up to two years before it expires or becomes due for renewal. A separate person wishing to transport in the same manner as the applicant for a special permit may apply for “party status” to the special permit. In this situation, the party applying for party status will be considered a “new” special permit holder and will be issued a special permit authorization letter, authorizing the party to operate as a grantee to the special permit with an expiration date (up to two years) based on the date of its application. If renewed, a special permit may be issued an expiration date of up to four years from the date of issuance. See §§ 107.107, and 107.113. —The Office of Hazardous Materials Exemptions and Approvals (OHMEA) is renamed the Office of Hazardous Materials Special Permits and Approvals (OHMSPA). —The e-mail address for OHMSPA is revised from *Exemptions@rspa.dot.gov* to *Specialpermits@dot.gov.* See §§ 107.105, 107.107, and 107.109. The provisions of the final rule applicable to the change from “Exemptions” to “Special permits” have caused some confusion among current exemption holders concerning the continued use of the “DOT-E” exemption marking on packages and shipping papers. The final rule allows for packagings authorized by an exemption issued prior to October 1, 2007, to be plainly and durably marked “DOT-E” in lieu of “DOT-SP” (see § 172.301(c)). This does not mean that all “DOT-E” exemption markings must be changed to “DOT-SP” after October 1, 2007. As provided in § 173.23(h), an exemption packaging that is permanently marked “DOT-E” prior to October 1, 2007, may continue in use with the “DOT-E” marking for the life of that exemption packaging, so long as the terms of the exemption or special permit remain valid. As provided in § 172.203(a), a shipping paper for a shipment made under a special permit must include the notation “DOT-SP” followed by the special permit number assigned. As an alternative, shipping papers for shipments made under an exemption or special permit issued prior to October 1, 2007, may include the notation “DOT-E” instead of “DOT-SP” followed by the number assigned. Thus, a shipper may use either notation for shipments made under an exemption or special permit issued prior to October 1, 2007. III. Correction This final rule corrects an error in the December 9, 2005 final rule. The final rule revised § 171.1(d)(7) to read: “Any matter subject to the postal laws and regulations of the United States, except in the case of an imminent hazard.” This final rule is removing that language from § 171.1(d)(7) and restoring the language previously in effect. In correcting this error, we confirm that the HMR do not apply to any matter subject to the postal laws and regulations of the United States and that the scope of the HMR has not changed. IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule is published under authority of Federal Hazardous Materials Transportation Law (Federal Hazmat Law; 49 U.S.C. 5101 *et seq.* ). Section 5103(b) of Federal Hazmat Law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. The amendments in this final rule are being adopted for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 *FR* 11034). There are no cost impacts associated with this final rule. C. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not adopt any regulation that:

(1)Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government;

(2)imposes substantial direct compliance costs on State and local governments; or

(3)preempts state law. Therefore, preparation of a federalism assessment is not warranted. D. Executive Order 13175 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply. E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies I certify this final rule will not have a significant economic impact on a substantial number of small entities. This rule corrects a previously issued final rule for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005. There are no cost impacts associated with this rule. F. Unfunded Mandates Reform Act of 1995 This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule. G. Paperwork Reduction Act There are no new information collection requirements in this final rule. H. Environmental Impact Analysis There are no environmental impacts associated with this final rule. I. Regulation Identifier Number

(RIN)A regulation identifier number

(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects in 49 CFR Part 171 Applicability, Hazardous materials transportation, Reporting and recordkeeping requirements. In consideration of the foregoing, amend 49 CFR Chapter I as follows: PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS The authority citation for part 171 continues to read as follows: Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45 and 1.53; Public Law 101-410 section 4 (28 U.S.C. 2461 note); Public Law 104-134 section 31001. 2. In § 171.1, revise paragraph (d)(7) to read as follows: § 171.1 Applicability of Hazardous Materials Regulations

(HMR)to persons and functions.

(d)* * *

(7)Any matter subject to the postal laws and regulations of the United States. Issued in Washington, DC, on August 1, 2006, under authority delegated in 49 CFR part 1. Thomas J. Barrett, Administrator. [FR Doc. E6-12804 Filed 8-7-06; 8:45 am] BILLING CODE 4910-60-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 060216044-6044-01; I.D. 080206C] Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the West Yakutat District of the Gulf of Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; prohibition of retention. SUMMARY: NMFS is prohibiting retention of Pacific ocean perch in the West Yakutat District of the Gulf of Alaska (GOA). NMFS is requiring that catch of Pacific ocean perch in this area be treated in the same manner as prohibited species and discarded at sea with a minimum of injury. This action is necessary because the 2006 total allowable catch

(TAC)of Pacific ocean perch in this area has been reached. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), August 3, 2006, until 2400 hrs, A.l.t., December 31, 2006. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Gulf of Alaska

(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and CFR part 679. The 2006 TAC of Pacific ocean perch in the West Yakutat District of the GOA is 1,101 metric tons as established by the 2006 and 2007 harvest specifications for groundfish of the GOA (71 FR 10870, March 3, 2006). In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the 2006 TAC of Pacific ocean perch in the West Yakutat District of the GOA has been reached. Therefore, NMFS is requiring that further catches of Pacific ocean perch in the West Yakutat District of the GOA be treated as prohibited species in accordance with § 679.21(b). Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibition of retention of Pacific ocean perch in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 27, 2006. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: August 2, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-6755 Filed 8-3-06; 1:02 pm]

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