Proposed Rules. Proposed rule

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2006-0016; FRL-8248-2] Approval and Promulgation of Air Quality Implementation Plans; Texas; Revisions to Reid Vapor Pressure Requirements for Gasoline AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan

(SIP)revision submitted by Texas on October 4, 2001. The revisions pertain to Reid Vapor Pressure

(RVP)requirements for gasoline. The revisions add exemptions to RVP requirements for research laboratories and academic institutions, competition racing, and gasoline that is being stored or transferred that is not used in the affected counties. The revisions also reduce record keeping requirements for retail gasoline dispensing outlets in the affected counties, and correct a typographical error. We are proposing approval of the revisions pursuant to section 110 and part D of the Federal Clean Air Act. DATES: Written comments should be received on or before December 27, 2006. ADDRESSES: Comments may be mailed to Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this **Federal Register** . FOR FURTHER INFORMATION CONTACT: Alima Patterson, State/Oversight Section (6PD-O), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone

(214)665-7247; fax number 214-665-7263; e-mail address *patterson.alima@epa.gov* . SUPPLEMENTARY INFORMATION: In the final section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. For additional information, see the direct final rule which is located in the rules section of this **Federal Register** . Dated: November 9, 2006. Lawrence E. Starfield, Acting Regional Administrator, Region 6. [FR Doc. E6-19992 Filed 11-24-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 281 [EPA-R08-UST-2006-0295; FRL-8247-2] Colorado: Tentative Approval of State Underground Storage Tank Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule; notice of tentative determination on application of state of Colorado for final approval, public hearing and public comment period. SUMMARY: The State of Colorado has applied for final approval of its Underground Storage Tank

(UST)Program under Subtitle I of the Resource Conservation and Recovery Act (RCRA). EPA has reviewed Colorado's application and made the tentative decision that the State's UST program satisfies all requirements necessary to qualify for final approval. DATES: Any member of the public is invited to provide written comments and/or request a public hearing on this determination by December 27, 2006. A public hearing will be held if sufficient public interest is expressed and communicated to EPA in writing by December 27, 2006. EPA will determine by January 26, 2007, whether there is significant interest to hold a public hearing. The State of Colorado will participate in any public hearing held by EPA on this subject. Please see SUPPLEMENTARY INFORMATION , Item C, for details. ADDRESSES: Written comments and requests for a public hearing shall be addressed to: Robert E. Roberts, Regional Administrator, c/o Francisca Chambus (8P-W-GW), U.S. EPA, Region 8, 999 18th Street, Suite 200, Denver, CO 80202-2466. Comments, as well as requests to present oral testimony, must be received by the close of business on December 27, 2006. All documents relating to this determination are available for public inspection and copying at the following locations:

(1)U.S. EPA, Library, Region 8, 999 18th Street, Suite 144, Denver, CO 80202-2466 from 9AM to 4PM,

(2)Colorado Department of Labor & Employment, Division of Oil and Public Safety, Public Records Center, 633 17th Street, Suite 200, Denver, CO 80202 from 8AM to Noon, or

(3)online at: *http://www.regulations.gov,* with reference to Docket ID No. EPA-R08-UST-2006-0295. However, based on sensitivity, certain materials are available in hardcopy only. Comments can be submitted via *www.regulations.gov.* The *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 *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. If EPA cannot read your comments 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 FURTHER INFORMATION CONTACT: Francisca Chambus at 303-312-6782. SUPPLEMENTARY INFORMATION: A. Background Section 9004 of RCRA enables EPA to approve implementation of State UST programs in lieu of the Federal UST program. Approval is granted when it has been determined that the State program:

(1)is “no less stringent” than the overall Federal program and includes notification requirements of Section 9004(a) (8), 42 U.S.C. 6991c(a)(8), and

(2)provides for adequate enforcement of compliance with UST standards of Section 9004(a), 42 U.S.C. 6991c(a). B. State of Colorado The Colorado Department of Labor & Employment, Division of Oil & Public Safety

(OPS)is the lead implementing agency for the UST program in Colorado. OPS has broad statutory authority to regulate UST releases under Colorado Revised Statutes, Title 8, Labor and Industry, Articles 20 and 20.5. Specific authority to regulate the installation, operation, maintenance, and closure of USTs is found under Colorado Department of Labor and Employment; Division of Oil and Public Safety; Storage Tank Regulation 7 CCR 1101-14. Colorado is not authorized to carry out its UST program in “Indian country.” This includes all lands within the exterior boundaries of the Southern Ute and Ute Mountain Ute Indian Reservations; any land held in trust by the United States for an Indian tribe, and any other areas that are “Indian country” within the meaning of 18 U.S.C. 1151. C. Requesting a Hearing Any request for a public hearing shall include:

(1)The name, address, and telephone number of the individual, organization, or other entity requesting a hearing,

(2)a brief statement of the requester's interest in the RA's determination and of information that he/she intends to submit at such hearing,

(3)the signature of the requester or responsible official, if made on behalf of an organization or other entity, and

(4)the associated Docket ID Number, if available. Notice of any hearing shall be given not less than fifteen

(15)days prior to the time scheduled for the hearing, and will be made by the RA in the **Federal Register** and newspapers of general circulation in the State. A notice will also be sent to both the person(s) requesting the hearing and the State. The hearing notice will include a statement of purpose, information regarding time and location, and the address and telephone number where interested persons may obtain further information. The RA will issue a final determination upon review of the hearing record. Frivolous or insubstantial requests for a hearing may be denied by the RA. However, if a substantial request is made within thirty

(30)days after this notice, a public hearing will be held. Please bring this notice to the attention of any persons known by you to have an interest in this determination. D. Statutory and Executive Order

(EO)Review This rule only applies to Colorado's UST Program requirements pursuant to RCRA Section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable EOs and statutory provisions as follows:

(1)Under EO 12866: Regulatory Planning Review, the Office of Management & Budget

(OMB)has exempted this rule from review;

(2)under Paperwork Reduction Act, this rule does not impose an information collection burden;

(3)under Regulatory Flexibility Act, and after considering economic impacts, I certify that this rule will not have significant economic impact on a substantial number of small entities;

(4)as described in the Unfunded Mandates Reform Act, because this rule codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate, or significantly or uniquely affect small governments;

(5)under EO 13132: Federalism, this rule does not apply because it will not have federalism implications;

(6)under EO 13175: Consultation & Coordination with Indian Tribal Governments, this rule does not apply because it will not have tribal implications;

(7)under EO 13045: Protection of Children from Environmental Health & Safety Risks, this rule is not subject because it is not economically significant, nor is it based on health or safety risks;

(8)under EO 13211: Actions that Significantly Affect Energy Supply, Distribution or Use, this rule is not subject because it is not a significant regulatory action as defined in EO 12866; and

(9)under the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note), EPA is directed to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (i.e., materials specifications, test methods, sampling procedures and business practices) developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when EPA decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. List of Subjects in 40 CFR Part 281 Environmental protection, Administrative practice and procedure, Hazardous materials, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: This notice is issued under the authority of Section 9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: November 17, 2006. Kerrigan G. Clough, Deputy Regional Administrator, Region 8. [FR Doc. E6-19988 Filed 11-24-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 401 [CMS-6032-P] RIN 0938-AO27 Medicare Program; Use of Repayment Plans AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Proposed rule. SUMMARY: This proposed rule would modify Medicare regulations to implement a provision of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 pertaining to the use of repayment plans (also known as extended repayment schedules or “ERS”). Under this provision, we propose to grant a provider or a supplier an extended repayment schedule under certain terms and conditions as defined in the statute. The proposed rule would establish criteria and procedures to apply this requirement and to define the concepts of “hardship” and “extreme hardship.” DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 26, 2007. ADDRESSES: In commenting, please refer to file code CMS-6032-P. Because of staff and resource limitations, we cannot accept comments by facsimile

(FAX)transmission. You may submit comments in one of four ways (no duplicates, please): 1. *Electronically.* You may submit electronic comments on specific issues in this regulation to *http://www.cms.hhs.gov/eRulemaking.* Click on the link “Submit electronic comments on CMS regulations with an open comment period.” (Attachments should be in Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft Word.) 2. *By regular mail.* You may mail written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-6032-P, P.O. Box 8020, Baltimore, MD 21244-8032. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. *By express or overnight mail.* You may send written comments (one original and two copies) to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-6032-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850. 4. *By hand or courier.* If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) before the close of the comment period to one of the following addresses. If you intend to deliver your comments to the Baltimore address, please call telephone number

(410)786-7195 in advance to schedule your arrival with one of our staff members. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security Boulevard, Baltimore, MD 21244-1850. (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.) Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period. For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: Tom Noplock,

(410)786-3378. SUPPLEMENTARY INFORMATION: *Submitting Comments:* We welcome comments from the public on all issues set forth in this rule to assist us in fully considering issues and developing policies. You can assist us by referencing the file code, CMS-6032-P, and the specific “issue identifier” that precedes the section on which you choose to comment. *Inspection of Public Comments:* All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: *http://www.cms.hhs.gov/eRulemaking.* Click on the link “Electronic Comments on CMS Regulations” on that Web site to view public comments. Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951. I. Background [If you choose to comment on issues in this section, please include the caption “BACKGROUND” at the beginning of your comments.] A. Medicare Overpayment Medicare overpayments are Medicare funds an individual, provider, or supplier has received that exceed amounts due and payable under the Medicare statute and regulations (plus any applicable interest and penalties assessed on the overpayment). We note that Medicare regulations at 42 CFR 400.202 define a “supplier” as “a physician or other practitioner, or an entity other than a provider, that furnishes health care services under Medicare.” Generally, overpayments result when payment is made by Medicare for noncovered items or services that exceeds the amount allowed by Medicare for an item or service, or when payment is made for items or services that should have been paid by another insurer (Medicare secondary payer obligations). Once a determination and any necessary adjustments in the amount of the overpayment have been made, the remaining amount is a debt owed to the United States Government. Section 1870 of the Social Security Act (the Act) provides a framework within which liability for such Medicare overpayments is determined and recoupment of overpayments is pursued. This framework prescribes a decision making process that the agency follows when pursuing the recoupment of Medicare overpayments. The regulation governing the liability for Medicare overpayments is located at 42 CFR part 401 (subpart F). B. Statutory Authority The Federal Claims Collection Act

(FCCA)of 1966, Public Law 89-508, 80 Stat. 308

(1966)(amended by the Debt Collection Improvement Act of 1966, Pub. L. 104-134

(1996)(codified at 31 U.S.C. 3711) is the Federal government's basic statutory authority for debt management practices. The Congress intended the FCCA to reduce the amount of litigation previously required to collect claims and to reduce the volume of private relief legislation in the Congress. The FCCA is independent of the other authorities we use to collect debt and was intended by the Congress to add to, rather than to supplant, other authorities, including common law authority. The FCCA authorizes the head of an agency to collect claims in any amount. This statute also provides that the head of an agency may, under certain conditions, compromise a claim, or suspend or terminate collection action on a claim. Uncollectible claims in excess of $100,000, exclusive of interest, must be referred to the Department of Justice for compromise. On November 2, 1977, the Secretary of the Department of Health and Human Services published a rule in the **Federal Register** (42 FR 57351) to delegate authority to the Department Claims Officer generally, and the Administrator of the Centers for Medicare & Medicaid Services (formerly Health Care Financing Administration (HCFA)) for necessary claims collection actions under our programs. The authority delegated to the Administrator covers all of our activities in the Medicare program (title XVIII) and pertains to claims up to $20,000. (This amount has been increased to $100,000; see 31 U.S.C. 3711.) On August 29, 1983, we published a final rule with comment period titled “Federal Claims Collection Act; Claims Collection and Compromise” in the **Federal Register** (48 FR 39060) in accordance with the FCCA. In this final rule, the agency adopted the applicable debt collection tools made available to it under the FCCA including the ability to collect or compromise claims, or suspend or terminate collection action, as appropriate. The final rule also set forth the requirements we would use to evaluate debtors' requests for extended repayment agreements specified in § 401.607. As part of the Health Insurance Portability and Accountability Act of 1996, the Congress added section 1893 to the Act establishing the Medicare integrity program

(MIP)to carry out Medicare program integrity activities that are funded from the Medicare Trust Fund. Section 1893 of the Act expands our contracting authority to allow us to contract with “eligible entities” to perform Medicare program integrity activities. These activities include review of provider and supplier activities, including medical, fraud, and utilization review; cost report audits; Medicare secondary payer determinations; education of providers, suppliers, beneficiaries, and other persons regarding payment integrity and benefit quality assurance issues; and developing and updating a list of durable medical equipment items that are subject to prior authorization (42 U.S.C. 1395ddd). These MIP contractors assist us in the identification and collection of provider and supplier Medicare overpayments. Overview of Current Policy The current policy CMS and its contractors use for the evaluation of extended repayment schedules

(ERSs)is based on the existing regulations at § 401.607(c)(2) [which we are proposing to redesignate as § 401.607(c)(3)] and guidance in the Medicare Financial Management Manual, Pub. 100-6 (Chapter 4, Section 50). Under our current policy, we determine the frequency and amount of the installment payments based on the factors set forth at § 401.607(c)(2) which include:

(i)The amount of the claim;

(ii)the debtor's ability to pay; and

(iii)the cost to CMS of administering an installment agreement. Under the current ERS review process, we primarily focus on the second factor, the debtor's ability to repay the overpayment, by conducting a review of the debtor's financial status, similar to how banks assess applicants for a loan. In almost all cases, we try to work with the provider or supplier to recover the overpayment. In general, it has been our experience that it is in both CMS and the debtor's best interests to work out a reasonable repayment schedule to recoup an overpayment rather than demand immediate collection of the debt, which could place a provider or supplier at financial risk or force the provider or supplier into bankruptcy. Under our existing procedures we review financial documentation submitted by the provider or supplier to assess the provider's or supplier's ability to repay the Medicare overpayment. This documentation must include, at a minimum, a statement of financial position (for example, balance sheet), a statement of financial performance (for example, income statement), and a statement of future viability (for example, projected statement of cash flow). In addition, the provider must include a letter from a financial institution proving that it cannot obtain financing from an alternative source. C. Medicare Prescription Drug, Improvement, and Modernization Act of 2003 1. Hardship Provision [If you choose to comment on issues in this section, please include the caption “HARDSHIP PROVISION” at the beginning of your comments.] On December 8, 2003, the Congress enacted the Medicare Prescription Drug, Improvement, and Modernization Act

(MMA)of 2003 (Pub. L. 108-173). This new legislation contained provisions affecting the recovery of provider and supplier overpayments under the Medicare program. Section 935(a) of the MMA amended title XVIII of the Act by adding a new section 1893(f)(1) to the Act to require us to use certain statutory criteria in evaluating whether a provider or supplier should be granted a repayment schedule of at least 6 months and up to 5 years. Under section 1893(f)(1) of the Act, we may grant a provider or a supplier upon request, a repayment schedule of at least 6 months, if repaying an overpayment within 30 days would constitute a “hardship” on the provider or supplier, provided that certain criteria are met. The new statute at section 1893(f)(1)(B)(i) of the Act defines “hardship” based on the relationship between the amount of the overpayment(s) not covered under an existing ERS owed by a provider or supplier and the total amount of Medicare payments made to that provider or supplier over the most recently submitted cost report or for the previous calendar year. Under section 1893(f)(1)(B) of the Act, a provider or supplier is deemed to be in “hardship” when the total amount of all outstanding overpayments not included in an approved, existing repayment schedule, is 10 percent or greater than the total Medicare payments made for the cost reporting period covered by the most recently submitted cost report (for a provider filing a cost report), or the previous calendar year (for a supplier or non cost-report provider). We propose to interpret “outstanding overpayments” to include both principal and accrued interest. We read the newly added section 1893(f)(1)(B)(iii) of the Act to exclude overpayments already being repaid under an approved ERS. We propose to interpret the new “hardship” test under section 935(a) of the MMA as not to supersede our extended repayment schedule regulations currently at § 401.607(c)(2), (which we are proposing to redesignate as § 401.607(c)(3) in this proposed rule). Since our existing regulations governing ERSs are promulgated under the FCCA, we do not plan to eliminate the criteria and procedures currently used to grant providers and suppliers ERSs. Instead, we propose adding an initial “hardship” test to existing regulations and procedures for determining a debtor's ERS. We are proposing that all requests for an ERS first be evaluated under the new “hardship” test. Under this MMA provision, if “hardship” is determined and no statutory exception applies under § 401.607(c)(2)(iv), then the statute requires that the Secretary grant a provider or supplier a repayment period of at least 6 months but not longer than 3 years. Section 935(a) of the MMA requires that the Secretary establish rules for cases when a provider or a supplier was not paid during the previous year or paid for only a portion of that year. For these cases, we propose using the last 12 months of Medicare payments made to the provider or supplier. In cases where there is less than a 12-month payment history, we propose that the number of months available be annualized to equal an approximate yearly Medicare payment level for the provider or supplier. Using the new “hardship” test provided in section 1893(f)(1) of the Act, the contractor would calculate “hardship” as described in the following examples: If the debt is from a provider that files cost reports, then the contractor will— *Step 1:* Determine cost reporting year covered by most recently filed cost report; *Step 2:* Determine total amount of Medicare dollars paid to provider for that cost report year; *Step 3:* Determine amount of all outstanding overpayments (principal and accrued interest) not under an existing ERS; and *Step 4:* Divide result in Step 3 by result in Step 2. If result in Step 4 is .10 or greater, then the provider meets the “hardship” test. We note that Medicare dollars paid for providers that file cost reports include all interim payments including tentative settlement amounts. *Example:* The provider submits cost report on 05/31/2004 for the cost report year from 01/01/2003 through 12/31/2003. For the cost report year ending 12/31/2003, the provider was paid a total of $1,000,000. On 8/31/2004, a notice of program reimbursement is issued as a result of the final settlement for the cost report year ending 12/31/2002 showing an overpayment of $105,000. Therefore, the provider meets the “hardship” test: $105,000 divided by $1,000,000 = .105. (Calculations should be carried out to three decimal points.) If the debt is from a provider or supplier that does not file cost reports, then the contractor will— Divide amount of all outstanding overpayments (principal and accrued interest) not under an existing ERS by the Medicare dollars paid by the contractor to the provider or supplier for the previous calendar year. If result is .10 or greater, the provider or supplier meets the “hardship” test. *Example:* On 09/01/2004, the provider or supplier is issued a demand letter for overpayments resulting from Medical Review of Part A Claims that total $110,000. For calendar year 2003, the provider or supplier was paid $1,000,000 by Medicare. $110,000 divided by $1,000,000 = 11. Based on this calculation, the provider or supplier meets the “hardship” test. If the provider or supplier does not qualify under the “hardship” test, we would then analyze the ERS request under the existing ERS procedures, found at newly redesignated § 401.607(c)(3). 2. Exceptions Under the “Hardship” Provision in Section 935(a) of the MMA As stated above, section 935(a) of the MMA sets out exceptions to granting a provider or supplier an extended repayment schedule even if the provider or supplier meets the “hardship” test. These exceptions are when there is reason to suspect the provider or supplier may file for bankruptcy, cease to do business, discontinue participation in the program, or when there is an indication of fraud or abuse committed against the program. We propose that contractors continue to use existing procedures and definitions applicable to bankruptcy and fraud or abuse. 3. Extreme Hardship Provision [If you choose to comment on issues in this section, please include the caption “EXTREME HARDSHIP PROVISION” at the beginning of your comments.] Under section 935(a) of the MMA, the Secretary may grant a provider or a supplier a repayment schedule of 36 months and up to 60 months if repaying an overpayment would constitute an “extreme hardship” unless a statutory exception applies under § 401.607(c)(2)(iv). Since the Congress left the definition of “extreme hardship” to our discretion, we are considering different approaches for defining “extreme hardship” and seek public comment on this section. We considered proposing a new financial threshold to determine if a provider or supplier was in extreme financial hardship, such as using a 15 percent threshold. We rejected this approach because it could result in discriminating against providers and suppliers who may be similarly financially situated but may attribute more of their total revenue to Medicare income. This could occur for example with a home health agency

(HHA)which may attribute 100 percent of its revenue to Medicare business and a skilled nursing facility

(SNF)which may only attribute 20 percent of its business to Medicare. The following example may help illustrate the inequitable results that may occur. If a HHA reporting $1 million in total revenue (100 percent of which was attributed to Medicare income), was subject to a 15 percent extreme hardship test, the HHA would need to owe an overpayment of 15 percent of $1 million, or at least $150,000, to qualify as being in extreme hardship. However, if a SNF reporting $1 million in total revenue had only 20 percent of its income attributed to Medicare ($200,000), this SNF would need to owe an overpayment of 15 percent of $200,000, or at least $30,000, in order to qualify as being in extreme hardship. This example illustrates the problems inherent with using a set threshold in defining “extreme hardship” for purposes of evaluating a provider's or supplier's ability to make payment on a Medicare debt. In fact, we believe that using any fixed financial variables in this type of evaluation poses limitations on CMS's ability to maintain the regulatory flexibility needed to properly evaluate a Medicare provider or supplier's request for an ERS. Using one fixed set of financial variables to determine the length of an ERS would be problematic and inefficient since the ERS evaluation is a multi-variable analysis. We need to review several variables contained in financial documents that include statements of a provider or supplier's financial position, financial performance, and future viability in order to properly assess a provider or debtor's ability to pay. Moreover, it is difficult for CMS to predict which financial variables will be the most useful in its analysis for each provider or supplier since this may vary on a case-by-case basis. We propose to define “extreme hardship” when a provider or supplier qualifies under the “hardship” provision defined above and the provider's or supplier's request for an ERS is approved under newly redesignated § 401.607(c)(3). If we determine the request meets the criteria in newly redesignated § 401.607(c)(3) and meets the CMS manual guidance set forth in the Medicare Financial Management Manual, Pub. 100-6, Chapter 4, Section 50, the provider or supplier may be granted an ERS between 36 and 60 months. We are also proposing that contractors apply the statutory exceptions to “extreme hardship” cases in a similar manner as they do to “hardship” cases. We solicit comments on other alternative approaches to define “extreme hardship” that could distinguish between the most extreme cases requiring ERSs between 36 and 60 months. 4. Extended Repayment Schedules [If you choose to comment on issues in this section, please include the caption “EXTENDED REPAYMENT SCHEDULES” at the beginning of your comments.] We propose to initially handle ERS requests differently than we have under our current regulations. The proposed rule would allow providers or suppliers that meet the “hardship” test and request only a 6-month ERS period, the opportunity to pay back the Medicare debt in 6 months without having to submit financial documentation to the contractor in accordance with the existing instructions given in the Medicare Financial Management Manual, CMS, Pub. 100-6, Chapter 4, Section 50. Not requiring financial documentation, such as financial statements, a bank denial letter, etc., may provide a provider or supplier time to generate or secure the necessary capital to liquidate the debt without having to file extensive documentation in order to secure a repayment schedule. Under the proposed regulation, a provider or supplier that requests a 6-month repayment schedule, meets the “hardship” test, does not fall within an exception, and elects not to submit financial documentation would be approved for a 6-month repayment schedule. Any provider or supplier qualifying for the 6-month ERS under the “hardship” provision has the choice to turn down the 6-month ERS and either pay off the debt within 30 days of the date of determination or request a longer than 6-month ERS. In addition, we would not prohibit any provider or supplier under the 6-month “hardship” provision ERS from applying for a longer ERS if it later desires to do so under § 401.607(c)(3). For all ERS requests, with the exception of those 6-month ERSs granted without a submission of financial documentation, we propose to rely on current regulations and procedures that require the provider or supplier to submit financial documentation in accordance with the Medicare Financial Management Manual, CMS Pub. 100-6, Chapter 4, Section 50. A provider or supplier must continue to submit a written request that refers to the specific overpayment for which an ERS is being requested, the number of months requested, and include the first payment with its request. The contractor would determine the duration of the ERS based on its review of the provider or supplier's documentation in accordance with CMS manual guidance. While the statute permits us to immediately collect on an entire overpayment, if a provider or supplier misses one installment payment in any ERS granted under section 935(a) of the MMA, we are proposing to impose this penalty only on the automatic 6-month repayment schedules. With all other ERSs, we propose to continue to use the existing procedures that define a default of an ERS as missing two consecutive installment payments. II. Provisions of the Proposed Regulations [If you choose to comment on issues in this section, please include the caption “PROVISIONS OF THE PROPOSED REGULATIONS” at the beginning of your comments.] We are proposing to revise paragraph

(a)in § 401.601, *Basis and scope* , to read as follows: “This subpart implements for CMS the Federal Claims Collection Act

(FCCA)of 1966 (amended 1996) (31 U.S.C. 3711), and conforms to the regulations (31 CFR parts 900-904) issued jointly by the Department of the Treasury and the Department of Justice that generally prescribe claims collection standards and procedures under the FCCA for the Federal government. This subpart also implements section 1893(f)(1) of the Act regarding the use of repayment plans.” In addition, we are proposing in § 401.603 to add a definition for an “Extended repayment schedule.” We are proposing to redesignate § 401.607(c)(2), “CMS decision,” as § 401.607(c)(3). In addition, we are proposing a new § 401.607(c)(2), “Extended repayment schedule,” in accordance with 1893(f)(1) of the Act. The provisions of section 1893(f)(1) of the Act, as amended by section 935(a) of the MMA, would be implemented by new § 401.607(c)(2), “Extended repayment schedule.” III. Collection of Information Requirements This proposed rule does not impose any new information collection or recordkeeping requirements. The burden associated with the collection activities discussed in the preamble that pertain to the extension of repayment schedules is currently approved under Office of Management and Budget

(OMB)control number 0938-0270, with an expiration date of September 30, 2007. However, in addition to the requirements discussed in this proposed rule, we plan to submit a revised information collection request

(ICR)to OMB for approval. As discussed in Section I.C.4. of the preamble, providers or suppliers that meet the “hardship” test and request only a 6-month ERS period, will have the opportunity to pay back the Medicare debt in 6 months without having to submit financial documentation to the contractor. This new requirement reduces the information collection burden placed on providers and suppliers. As part of the OMB approval process for the revised ICR, the revisions to 0938-0270 will be announced in **Federal Register** notices and made available to the public for comment. IV. Response to Comments Because of the large number of public comments we normally receive on **Federal Register** documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document. V. Regulatory Impact Statement A. Overall Impact We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act

(RFA)(September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132. Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis

(RIA)must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule would not reach the economic threshold and thus is not considered a major rule. There would be no additional costs or documented savings resulting from the implementation of this rule. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. For purposes of the RFA, approximately 95 percent of the health care industry is considered small businesses according to the Small Business Administration's size standards with total revenues of $6 million to $29 million or less in any 1 year. Individuals and States are not included in the definition of a small entity. Because there are no additional costs or documented savings resulting from the implementation of this rule, this rule would not have a significant impact on small businesses. In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. Because there are no additional costs or documented savings resulting from the implementation of this rule, this rule would not have a significant impact on small rural hospitals. Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This rule would not have an effect on the governments mentioned and the private sector costs would be less than $120 million threshold. Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule would not have a substantial effect on State or local governments. B. Anticipated Effects 1. Effects on Medicare Providers This rule could affect all Medicare provider types with a Medicare overpayment. This proposed rule would allow Medicare providers falling within these provisions a 6-month period to pay back debt owed to Medicare without being required to file extensive financial documentation. We believe that this short time period may permit a provider to generate or secure the necessary capital to liquidate the debt without filing the financial documentation required to secure a longer repayment schedule. 2. Effects on Other Providers There would be no effect on other providers. 3. Effects on the Medicare and Medicaid Programs There would be no additional costs or documented savings resulting from the implementation of this rule. There may be savings due to a possible reduction in paperwork. C. Alternatives Considered We considered adopting mathematically precise distinctions between “hardship” and “extreme hardship,” but rejected this approach. To select any type of numerical threshold, for example, defining “extreme hardship” as 15 percent of total overpayments in an effort to distinguish it from the test for “hardship,” would result in inequitable outcomes for different providers and suppliers as discussed in the “extreme hardship” section of the preamble. We believe the proposed approach will lead to more equitable solutions. In implementing section 935 of the MMA, we want to assure providers and suppliers that we will be looking closely at the financial picture each of them has that has prompted them to seek an ERS. Analyzing these financial profiles is a complex undertaking that does not lend itself to overly simplified numerical cutoffs that may qualify some for longer repayment periods but deny them to others that ought to be just as eligible. We seek comment on other alternative ways to distinguish between “hardship” and “extreme hardship” in an effort to establish a standardized approach to applying the two definitions. D. Executive Order 12866 Statement In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects in 42 CFR Part 401 Claims, Freedom of information, Health facilities, Medicare, Privacy. For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services would amend 42 CFR chapter IV as set forth below: PART 401—GENERAL ADMINISTRATIVE REQUIREMENTS 1. The authority citation for part 401 continues to read as follows: Authority: Secs. 1102, 1871, and 1893 of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395ddd). Subpart F is also issued under the authority of the Federal Claims Collection Act (amended 1996) (31 U.S.C. 3711). 2. In § 401.601, paragraph

(a)is revised to read as follows: § 401.601 Basis and scope.

(a)*Basis.* This subpart implements for CMS the Federal Claims Collection Act

(c)* * *

(2)*Extended repayment schedule.*

(i)For purposes of this paragraph (c)(2), the following definitions apply: *Hardship* exists when the total amount of all outstanding overpayments (principal and interest) not included in an approved, existing repayment schedule is 10 percent or greater than the total Medicare payments made for the cost reporting period covered by the most recently submitted cost report for a provider filing a cost report, or for the previous calendar year for a supplier or non cost-report provider. *Extreme hardship* exists when a provider or supplier qualifies as being in “hardship” as defined in this paragraph and the provider's or supplier's request for an extended repayment schedule

(ERS)is approved under paragraph (c)(3) of this section.

(ii)CMS or its contractor reviews a provider's or supplier's request for an ERS. For a provider or a supplier not paid by Medicare during the previous year or paid only during a portion of that year, the contractor or CMS will use the last 12 months of Medicare payments. If less than a 12-month payment history exists, the number of months available is annualized to equal an approximate yearly Medicare payment level for the provider or supplier.

(iii)For a provider or supplier requesting an ERS, CMS or its contractor evaluates the request based on the definitions and information submitted under this paragraph (c)(2). For a provider or supplier whose situation does not meet the definitions in paragraph (c)(2)(i) of this section, CMS or its contractor evaluates the ERS request using the information in paragraph (c)(3) of this section in deciding to grant an ERS.

(iv)CMS or its contractor is not required to grant an ERS to a provider or supplier if there is reason to suspect the provider or supplier may file for bankruptcy, cease to do business, discontinue participation in the Medicare program, or there is an indication of fraud or abuse committed against the Medicare program.

(v)CMS or its contractor may grant a provider or a supplier an ERS of at least 6 months if repaying an overpayment within 30 days would constitute a “hardship” as defined in paragraph (c)(2)(i) of this section. If a provider or supplier is granted an ERS for 6 months under paragraph (c)(2)(i) of this section, missing one installment payment constitutes a default and the total balance of the overpayment will be recovered immediately.

(vi)CMS or its contractor may grant a provider or a supplier an ERS of 36 months and up to 60 months if repaying an overpayment would constitute an “extreme hardship” as defined in paragraph (c)(2)(i) of this section. (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare-Hospital Insurance; and Program No. 93.774, Medicare-Supplementary Medical Insurance Program) Dated: April 5, 2006. Mark B. McClellan, Administrator, Centers for Medicare & Medicaid Services. Approved: May 17, 2006. Michael O. Leavitt, Secretary. Editorial Note: This document was received at the Office of the Federal Register on November 20, 2006. [FR Doc. E6-19960 Filed 11-24-06; 8:45 am] BILLING CODE 4120-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 RIN 0648-AT67 [Docket No.061109296-6296-01; I.D. 110606A] Fisheries of the Northeastern United States; Atlantic Bluefish Fisheries; 2007 Atlantic Bluefish Specifications; 2007 Research Set-Aside Project AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes 2007 specifications for the Atlantic bluefish fishery, including state-by-state commercial quotas, a recreational harvest limit, and recreational possession limits for Atlantic bluefish off the east coast of the United States. The intent of these specifications is to establish the allowable 2007 harvest levels and possession limits to attain the target fishing mortality rate (F), consistent with the stock rebuilding program in Amendment 1 to the Atlantic Bluefish Fishery Management Plan (FMP). DATES: Written comments must be received no later than 5 p.m. eastern standard time, on December 27, 2006. ADDRESSES: You may submit comments by any of the following methods: • E-mail: *Bluespecs2007@noaa.gov* . Include in the subject line the following identifier: “Comments on 2007 Bluefish Specifications.” • Federal e-Rulemaking portal: *http://www.regulations.gov* . • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on 2007 Bluefish Specifications.” • Fax:

(978)281-9135. Copies of the specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South Street, Dover, DE 19901-6790. The specifications document is also accessible via the Internet at *http://www.nero.noaa.gov* . The Northeast Fisheries Science Center (Center) 41st Stock Assessment Review Committee

(SARC)Bluefish Assessment Report (updated for 2006) is available at: *http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0514/* . FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy Analyst,

(978)281-9103, or Michael Pentony, Senior Fishery Policy Analyst,

(978)281-9283. SUPPLEMENTARY INFORMATION: Background The regulations implementing the Atlantic Bluefish Fishery Management Plan

(FMP)are prepared by the Mid-Atlantic Fishery Management Council (Council) and appear at 50 CFR part 648, subparts A and J. Regulations requiring annual specifications are found at § 648.160. The management unit for bluefish ( *Pomatomus saltatrix* ) is U.S. waters of the western Atlantic Ocean. The FMP requires that the Council recommend, on an annual basis, total allowable landings

(TAL)for the fishery, consisting of a commercial quota and recreational harvest limit (RHL). A research set aside

(RSA)quota is deducted from the bluefish TAL (after any applicable transfer) in an amount proportional to the percentage of the overall TAL as allocated to the commercial and recreational sectors. The annual review process for bluefish requires that the Council's Bluefish Monitoring Committee (Monitoring Committee) review and make recommendations based on the best available data including, but not limited to, commercial and recreational catch/landing statistics, current estimates of fishing mortality, stock abundance, discards for the recreational fishery, and juvenile recruitment. Based on the recommendations of the Monitoring Committee, the Council makes a recommendation to the Northeast Regional Administrator (RA). This FMP is a joint plan with the Atlantic States Marine Fisheries Commission (Commission); therefore, the Commission meets during the annual specification process to adopt complimentary measures. The Council's recommendations must include supporting documentation, concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to assure they achieve the FMP objectives, and may modify them if they do not. NMFS then publishes proposed specifications in the **Federal Register** . After considering public comment, NMFS will publish final specifications in the **Federal Register** . In July 2006, the Monitoring Committee met to discuss the updated estimates of bluefish stock biomass and project fishery yields for 2007. In August 2006, the Council approved the Monitoring Committee's recommendations and the Commission's Bluefish Board (Board) adopted complementary management measures. Proposed Specifications Updated Model Estimates According to Amendment 1 to the FMP (Amendment 1), overfishing for bluefish occurs when F exceeds the fishing mortality rate that allows maximum sustainable yield (F MSY ), or the maximum F threshold to be achieved. The stock is considered overfished if the biomass

(B)falls below the minimum biomass threshold, which is defined as 1/2 BMSY . The Amendment also established that the long term target F (F 0.1 ) is 90 percent of F MSY , and the long term target B is B MSY . The rebuilding plan established through Amendment 1 stipulates that the target fishing mortality rate (F target ) in 2007 be set at F = 0.31, or the status quo fishing mortality rate (F year ), whichever is less. An age-structured assessment program

(ASAP)model presented by the bluefish SARC in 2005 estimated annual biomass and F through the 2004 fishing year, as well as associated biological reference points. The original ASAP model output was revised in 2006. The corrected values were made available by the Center in August of 2006 as follows: B 2004 = 230 million lb (104,136 mt), which was greater than the minimum biomass threshold, 1/2B MSY = 162 million lb (73,526 mt), and F 2004 = 0.15, which was less than the maximum F threshold, F MSY = 0.19. These revisions indicated that the bluefish stock was not overfished and that overfishing was not occurring (see ADDRESSES for link to revised report). The ASAP model was updated for the purpose of estimating the current status of the bluefish stock; i.e., 2005 biomass and F estimates were compared to the corrected ASAP model output, in order to enable the Monitoring Committee to recommend 2007 specifications using landing information through the 2005 fishing year. Additionally, a projection of biomass through 2010 was done using F target = F 2005 = 0.15. This projection identified a target yield for 2007 and also indicated that biomass is likely to reach the target by the rebuilding deadline; i.e., the year 2010. The Monitoring Committee supported the model updates that derived the following new estimates of biomass and projected fishery yields based on the corrected biological reference points for 2004:

(1)An estimated stock biomass for 2005, B 2005 = 310 million lb (140,614 mt); and

(2)projected yields for 2007 using F target = F 2005 = 0.15. Based on the updated biological reference points, and the 2005 estimate of bluefish stock biomass, the bluefish stock is not considered overfished: B 2005 = 310 million lb (140,614 mt) is greater than the minimum biomass threshold, 1/2 B MSY = 162 million lb (73,526 mt). Estimates of fishing mortality have declined from 0.41 in 1991 to 0.15 in 2005. The new model results also conclude that the Atlantic stock of bluefish is not experiencing overfishing; i.e., the most recent F (F 2005 = 0.15) is less than the maximum F overfishing threshold (F MSY = 0.19). 2007 TAL The FMP specifies that the bluefish stock is to be rebuilt to BMSY over a 9-year period. The FMP requires the Council to recommend, on an annual basis, a level of total allowable catch

(TAC)consistent with the rebuilding program in the FMP. An estimate of annual discards is deducted from the TAC to calculate the total allowable landings

(TAL)that can be made during the year by the commercial and recreational fishing sectors combined. The TAL is composed of a commercial quota and a RHL. The FMP rebuilding program requires the TAC for any given year to be set based either on the target F resulting from the stock rebuilding schedule specified in the FMP (0.31 for 2007), or the F estimated in the most recent fishing year (F 2005 = 0.15), whichever is lower. Therefore, the 2007 recommendation is based on an estimated F of 0.15. An overall TAC of 32.033 million lb (14,530 mt) was recommended as the coast-wide TAC by the Council at its August 2006 meeting to achieve the target fishing mortality rate, (F = 0.15) in 2007, and to ensure that the bluefish stock continues toward the long term biomass target, B MSY = 324 million lb (147,052 mt), consistent with the rebuilding schedule specified in Amendment 1. Based on the 2005 biomass estimate (310 million lb (140,614 mt)) the bluefish stock is well above the minimum biomass threshold (1/2 B MSY = 162 million lb (73,526 mt)), but is still slightly below the long-term biomass target (B MSY = 324 million lb (147,052 mt)). The TAL for 2007 is derived by subtracting an estimate of discards of 4.271 million lb (1,937 mt), the average discard level from 2001-2005, from the TAC. After subtracting estimated discards, the 2007 TAL would be approximately 12 percent greater than the 2006 TAL, or 27.762 million lb (12,593 mt). Based strictly on the percentages specified in the FMP (17 percent commercial, 83 percent recreational), the commercial quota for 2007 would be 4.720 million lb (2,141 mt), and the RHL would be 23.043 million lb (10,452 mt) in 2007. In addition, up to 3 percent of the TAL may be allocated as RSA quota. The discussion below describes the recommended allocation of TAL between the commercial and recreational sectors, and its proportional adjustment downward to account for the recommended bluefish RSA quota. Proposed Commercial Quota and Recreational Harvest Limit The FMP stipulates that in any year in which 17 percent of the TAL is less than 10.500 million lb (4,763 mt), the commercial quota may be increased up to 10.500 million lb (4,763 mt) as long as the recreational fishery is not projected to land more than 83 percent of the TAL in the upcoming fishing year, and the combined projected recreational landings and commercial quota would not exceed the TAL. At the Monitoring Committee meeting, Council staff presented a new mechanism for estimating projected recreational landings (simple linear regression of the recent (2000-2005) temporal trend in recreational landings) for the 2007 fishing year. The rationale provided for why this method was preferred was that the Marine Recreational Fisheries Statistics Survey (MRFSS) sampling coverage in wave 1 increased dramatically in 2005 compared to previous years, and to extrapolate this wave 1 landing level to the upcoming year would result in a higher estimate of projected landings than would likely be achieved. The Monitoring Committee, which met in July 2006, reviewed and recommended using the linear projection approach for projecting 2007 recreational landings. Recreational landings are projected to reach 17.813 million lb (8,080 mt) in 2007. If the maximum commercial quota of 10.500 million lb (4,763 mt) is established within a TAL of 27.762 million lb (12,593 mt) this would leave 17.262 million lb (7,830 mt) for the recreational fishery. This amount is less than the projected 2007 recreational landings (17.813 million lb (7,830 mt)) which when added to the maximum allowable commercial quota of 10.500 million lb (4,763 mt) would exceed the overall TAL. Therefore, because the FMP and regulations governing the bluefish fishery do not allow for this maximum allowable commercial quota, the Monitoring Committee and the Council recommended, and NMFS proposes, to transfer 4.780 million lb (2,168 mt) from the initial recreational allocation of 23.043 million lb (10,452 mt) resulting in a proposed 2007 commercial quota of 9.500 million lb (4,309 mt) and a RHL of 18.262 million lb (8,284 mt). These allocations were also recommended by the Commission to be implemented by the states for fisheries within state waters. RSA A request for proposals was published to solicit research proposals to utilize RSA in 2006 based on research priorities identified by the Council (December 23, 2005; 70 FR 76253). One research project that would utilize bluefish RSA has been approved by the RA and forwarded to the NOAA Grants Office. Therefore, a 363,677-lb (164,961-kg) RSA quota is proposed. Consistent with the allocation of the bluefish RSA, the proposed commercial quota for 2007 would be reduced to 9.376 million lb (4,253 mt) and the proposed RHL is reduced to 18.023 million lb (8,175 mt). Proposed Recreational Possession Limit The Council recommends, and NMFS proposes, to maintain the current recreational possession limit of up to 15 fish per person to achieve the RHL. Proposed State Commercial Allocations The proposed state commercial allocations for the recommended 2007 commercial quota are shown in Table 1 below, based on the percentages specified in the FMP. The table shows the allocations both before and after the deduction made to reflect the proposed RSA allocation. Table 1. Proposed Bluefish Commercial State-by-State Allocations for 2007 States Quota Percent Share 2007 Commercial Quota

(kg)2007 Commercial Quota

(lb)With Research Set-Aside 2007 Commercial Quota

(kg)With Research Set-Aside ME 0.6685 63,508 28,807 62,676 28,429 NH 0.4145 39,378 17,862 38,862 17,628 MA 6.7167 638,087 289,434 629,728 285,643 RI 6.8081 646,770 293,373 638,297 289,530 CT 1.2663 120,299 54,567 118,723 53,852 NY 10.3851 986,585 447,512 973,661 441,650 NJ 14.8162 1,407,539 638,456 1,389,101 630,092 DE 1.8782 178,429 80,935 176,092 79,875 MD 3.0018 285,171 129,353 281,435 127,658 VA 11.8795 1,128,553 511,908 1,113,769 505,202 NC 32.0608 3,045,776 1,381,555 3,005,877 1,363,457 SC 0.0352 3,344 1,517 3,300 1,497 GA 0.0095 903 409 891 404 FL 10.0597 955,672 433,490 943,153 427,811 Total 100.0001 9,500,000 4,309,172 9,375,562 4,252,727 Classification NMFS has determined that the proposed rule is consistent with the FMP and preliminarily determined that the rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. An initial regulatory flexibility analysis

(IRFA)was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A copy of the IRFA can be obtained from the Council or NMFS (see ADDRESSES ) or via the Internet at *http://www.nero.noaa.gov* . A summary of the economic analysis follows. There were no large entities that participated in this fishery, as defined in section 601 of the RFA. Because there are no large entities participating in this fishery, there are no disproportionate effects on small versus large entities. Information on costs in the fishery are not readily available and vessel profitability cannot be determined directly. Therefore, changes in gross revenues were used as a proxy for profitability. In the absence of quantitative data, qualitative analyses were conducted. The participants in the commercial sector were defined using two sets of data. First, the Northeast dealer reports were used to identify any vessel that reported having landed 1 or more pounds of bluefish during calendar year 2005 (the last year for which there is complete data). These dealer reports identify 745 vessels that landed bluefish in states from Maine to North Carolina. However, this database does not provide information about fishery participation in South Carolina, Georgia, or Florida. To identify those commercial bluefish vessels, South Atlantic Trip Ticket reports were used to identify 882 vessels that landed bluefish in North Carolina and 620 vessels that landed bluefish on Florida's east coast. The bluefish landings in South Carolina and Georgia represented less than 1/10 of 1 percent of total landings, a negligible proportion of the total bluefish landings along the Atlantic coast in 2005. In recent years, approximately 2,063 party/charter vessels may have been active and/or caught bluefish. The IRFA analyzed three alternatives (including the no action/status quo alternative) for allocating the TAL between the commercial and recreational sectors of the fishery. Consistent with FMP's rebuilding schedule and the status of the resource as assessed by the revised SARC-41 report and the updated model projections, alternatives one and two were based on an overall TAL of 27.762 million lb (12,593 mt) and included an RSA quota of 363,677 lb (164,961 kg). The no action alternative includes an overall TAL of 24.799 million lb (11,249 mt) and an RSA quota of 363,677 lb (164,961 kg). Outside of the difference in the overall TAL specification, the alternatives differed only in the manner in which the TAL was allocated between the commercial and recreational sectors. The recommended alternative, before RSA deduction, would allocate 9.500 million lb (4,309 mt) to the commercial sector and 18.262 million lb (8,284 mt) to the recreational sector. Alternative 2, the most restrictive alternative, would have allocated 4.720 million lb (2,141 mt) to the commercial sector and 23.043 million lb (10,452 mt) to the recreational sector, reflecting the percentage allocations specified in the FMP (i.e., the 17-percent commercial/83-percent recreational sector split). Alternative 3 would have allocated 8.082 million lb (3,666 mt) to the commercial sector and 16.718 million lb (7,583 mt) to the recreational sector, reflecting the commercial level that was place in 2006 (i.e., status quo/no action alternative). For the commercial sector, the recommended coast-wide quota is approximately 35 percent higher than 2005 commercial landings. Impacts on individual commercial vessels were assessed by conducting a threshold analysis using the dealer reports for the 745 vessels that landed bluefish from Maine through North Carolina. The analysis projected that there would be no revenue change for 638 out of 745 vessels, while 104 vessels could incur slight revenue losses of less than 5 percent. Another three vessels could incur revenue losses of between 5 percent and 39 percent; all these vessels identified home ports in New York. According to a threshold impact analysis that compared 2005 landings from the Northeast dealer reports to the recommended 2007 adjusted commercial quota allocation, New York could experience decreases in landings up to 14 percent, while overall coast wide landings would increase by approximately 33 percent. This is due to the fact that New York's proposed 2007 quota is smaller than actual 2005 landings. The impacts of the proposed alternative on commercial vessels in the South Atlantic were assessed using trip ticket data. The analysis concluded that as a consequence of the 2007 recommended allocation compared to 2005 landings, there would be no decreased landings in North Carolina, Florida, and Georgia. On average, the potential increase in landings in North Carolina is expected to be minimal (approximately 7 percent); whereby, no projected revenue losses are expected for vessels that landed in Florida. While the potential percentage increase in bluefish landings from Georgia appears high (136 percent), bluefish landed in Georgia represent a very small proportion of the overall coast wide landings (less than 1/10 of 1 percent), so this would represent a very small increase in absolute terms. The provision that allows commercial quota to be transferred from one state to another may result in transfers of quota to New York and possibly North Carolina, from other states, thus mitigating the potential negative revenue impacts. While not assured, such transfers have been made annually in recent years, including 2004 and 2006. The analysis of Alternative 2 concluded that, for the commercial sector, there would be a 33-percent decrease in total potential commercial landings in 2007 compared to 2005 landings. The analysis of impacts on individual commercial vessels projected that there would be no revenue change for 93 of the 745 vessels that landed bluefish in 2005, while 585 vessels could incur slight revenue losses (less than 5 percent). Another 52 vessels could incur revenue losses between 5 percent and 39 percent, while 15 vessels could incur revenue losses of greater than 39 percent. Nearly all of the vessels projected to incur revenue losses of greater than 5 percent had home ports in Massachusetts, New York, New Jersey, Pennsylvania, or North Carolina. Again, the commercial quota transfer provision could be expected to mitigate some or all of these impacts, although to a lesser extent than in the other alternatives, as all states would have less quota to transfer. The impacts of Alternative 2 on commercial vessels in the south Atlantic area were assessed using trip ticket data. The analysis concluded that these impacts would result in revenue reductions associated with allowable landings of approximately 47 percent for vessels that landed in North Carolina. However, on average, reductions in landings would be expected to approximate 6 percent for vessels that land in North Carolina. No projected revenue losses are expected for vessels that land in Florida. The analysis of Alternative 3 concluded that, for the commercial sector, there would be a 15-percent increase in total potential commercial landings in 2007 compared to actual landings in 2005. The analysis of impacts on individual commercial vessels projected that there would be no revenue change for 324 of the 745 vessels that landed bluefish in 2005, while 411 could incur slight revenue losses (less than 5 percent). Another 14 vessels could incur revenue losses between 5 percent and 39 percent. The vessels projected to incur revenue losses of greater than 5 percent had home ports in New York, New Jersey, and North Carolina. Similar to the other alternatives, the commercial quota transfer provision could be utilized to mitigate revenue losses, the extent to which would be dependent on a state's willingness and ability to partake in the transfer. The impacts of Alternative 3 on commercial vessels in the south Atlantic area were assessed using trip ticket data. The analysis concludes that these impacts would result in revenue reductions associated with allowable landings of approximately 9 percent for 882 vessels identified as landing in North Carolina and no revenue reductions for vessels landing in Florida. For the recreational sector of the fishery, there were no negative revenue impacts projected to occur with regard the recommended RHLs because this level would be close to the recreational landings in 2005 (16.162 million lb (7,331 mt)), and above the recreational landings projected for 2007 through the linear projection approach (17.813 million lb (8,080 mt). The recommended RHL is higher than the other two other alternatives, to account for this increase in expected landings. The recreational fishery impacts may be greater under Alternatives 3, compared to the recommended measures under Alternative 1, because the RHL under this alternative is less than the projected landings for 2007. Although there is very little empirical evidence regarding the sensitivity of charter/party anglers to regulation, it is anticipated that the proposed harvest levels will not affect the demand for charter/party boat trips. The IRFA also analyzed the impacts on revenues of the proposed RSA amount and found that the social and economic impacts are minimal. Assuming that the full RSA of 363,677 lb (164,961 kg) is landed and sold to support the proposed research project (a supplemental finfish survey in the Mid-Atlantic) then all of the participants in the fishery would benefit from the anticipated improvements in the data underlying the stock assessments. Because the recommended overall commercial quota is higher than 2005 landings, no overall negative impacts are expected in the commercial sector. Based on recent trends in the recreational fishery, recreational landings will more than likely remain below the recommended harvest level in 2007. A full analysis is available from the Council (see ADDRESSES ). Authority: 16 U.S.C. 1801 *et seq.* Dated: November 20, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E6-20005 Filed 11-24-06; 8:45 am] BILLING CODE 3510-22-S 71 227 Monday, November 27, 2006 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 20, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding

(a)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility and clarity of the information to be collected;

(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *oira_submission@omb.eop.gov* or fax

(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling

(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Animal Plant and Health Inspection Service *Title:* Irradiation Phytosanitary Treatment for Fresh Fruits and Vegetables. *OMB Control Number:* 0579-0155. *Summary of Collection:* The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the Secretary of Agriculture to regulate the importation of plants, plant products, and other articles to prevent the introduction of injurious plant pests and noxious weeds. Regulations in 7 CFR part 305 provide for the use of irradiation as a phytosanitary treatment for certain fruits and vegetables imported in the United States. The irradiation treatment provides protection against 11 species of fruit flies and mango seed weevil. *Need and Use of the Information:* The Animal and Plant Health Inspection Service (APHIS) will collect information using a compliance agreement, 30-day notification, labeling requirements, dosimetry recordings, requests for dosimetry device approval, recordkeeping, requests for facility approval. Without the collection of this information, APHIS would have no practical way of determining that any given commodity had actually been irradiated. *Description of Respondents:* Business or other for profit; individuals or households; farms. *Number of Respondents:* 25. *Frequency of Responses:* Recordkeeping; reporting: On occasion. *Total Burden Hours:* 760. Animal and Plant Health Inspection Service *Title:* Federal Plant Pest and Noxious Weeds Regulations. *OMB Control Number:* 0579-0054. *Summary of Collection:* The Plant Protection and Quarantine Program of the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture is responsible for preventing plant pests and noxious weeds from entering the United States, preventing the spread of pests and weeds not widely distributed in the United States, and eradicating those imported pests and weeds when eradication is feasible. APHIS will collect information using several forms. *Need and Use of the Information:* APHIS will collect information to evaluate the risk associated with the proposed movement of plant pest, noxious weeds, and soil. APHIS will also collect information to monitor operations at facility to ensure permit conditions are being met. The information is used to determine whether a permit can be issued, and also to develop risk-mitigating conditions for the proposed movement. If the information were not collected, APHIS ability to protect the United States from a plant pest or noxious weed incursion would be significantly compromised. *Description of Respondents:* Business or other for-profit; individuals or households; Federal Government; State, Local or Tribal Government. *Number of Respondents:* 55,816. *Frequency of Responses:* Recordkeeping; reporting: On occasion. *Total Burden Hours:* 48,435. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E6-19963 Filed 11-24-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Farmer-Stock Peanuts Available for Sale in Online Auction AGENCY: Commodity Credit Corporation, USDA. ACTION: Notice. SUMMARY: The Commodity Credit Corporation

(CCC)is announcing that the inventoried farmer-stock peanuts will be available for sale as unrestricted use on November 29, 2006 on the Internet at *www.theseam.com* . EFFECTIVE DATE: November 27, 2006. FOR FURTHER INFORMATION CONTACT: Jose Gonzalez, Inventory Program Manager, Warehouse and Inventory Division, Farm Service Agency, USDA, STOP 0553, 1400 Independence Avenue, SW., Washington, DC 20250-0553. Telephone:

(202)690-2534. E-mail: *jose.gonzalez@wdc.usda.gov* . Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at

(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: CCC acquires farmer-stock peanuts through the forfeiture of marketing assistance loans obtained in accordance with the Farm Security and Rural Investment Act of 2002. CCC's general sales policy is to maximize the returns to the Corporation. The authority for selling CCC-owned peanuts is the CCC Charter Act and section 165 of the Federal Agriculture Improvement and Reform Act of 1996. The regulations at 7 CFR, part 1402, contain CCC policy for certain commodities available for sale by CCC. CCC has contracted with The Seam, LLC, of Memphis, Tennessee to provide online marketing services to sell CCC-owned peanuts on the Internet. CCC will entertain offers from prospective buyers for the purchase of CCC-owned peanuts that are included in the inventory listed on The Seam's web site. CCC owns 41,925 tons of farmer-stock peanuts. The inventory is composed of the following: 24,329 tons of Runner-type; 10,546 tons of Spanish-type; 4,836 tons of Virginia-type; and 2,214 tons of Valencia-type peanuts. The peanuts will be made available in an auction sale format in lieu of individual negotiated sales. All CCC inventoried peanuts will be available for sale as unrestricted use at *www.theseam.com* on November 29, 2006, from 10 a.m. to 12 p.m. Central Time (CT). This inventory will be made available for advance review only, from 9 a.m. to 4 p.m. CT, on November 27 and November 28, 2006. On November 29, 2006, an additional preview period will be provided from 9 a.m. to 10 a.m. CT. Any unsold CCC peanut inventory may be placed on The Seam's website at anytime following November 29, 2006, without prior notification to the public. Interested parties are encouraged to check The Seam's website on a regular basis for inventory that may be made available for sale. To participate in the online peanut sales, The Seam requires users to enter into a participation agreement. There are no commission charges to place bids online; however, successful bidders are charged a commission fee of $0.75 per ton for completed sales. Additional information on The Seam is available by contacting Kevin Brinkley, by telephone at

(901)374-0374, or by e-mail at *kevin.brinkley@theseam.com* or Charles Garner at

(478)988-1125, or by e-mail at *charles.garner@theseam.com* Any questions about this notice may be directed to Jose Gonzalez by calling

(202)690-2534 or e-mail *jose.gonzalez@wdc.usda.gov* . Signed at Washington, DC, November 17, 2006. Glen L. Keppy, Acting Executive Vice President Commodity Credit Corporation. [FR Doc. E6-19974 Filed 11-24-06; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request: Food Stamp Program: State Issuance and Participation Estimates—Form FNS-388 AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service

(FNS)is publishing for public comment a summary of a proposed information collection. The proposed collection is a revision of a collection currently approved under OMB No. 0584-0081 for the Food Stamp Program for the form FNS-388, State Issuance and Participation Estimates. DATES: Comments on this notice must be received by January 26, 2007 to be assured of consideration. ADDRESSES: Comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

(b)the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility, and clarity of the information to be collected; and

(d)ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Send comments and requests for copies of this information collection to Barbara Hallman, Chief, State Administration Branch, Food Stamp Program, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302. Copies of the estimate of the information collection can be obtained by contacting Ms. Hallman. All comments will be summarized and included in the request for Office of Management and Budget approval of the information collection. All comments will become a matter of public record. FOR FURTHER INFORMATION CONTACT: Barbara Hallman at

(703)305-2383. SUPPLEMENTARY INFORMATION: *Title:* Form FNS-388, State Issuance and Participation Estimates. *OMB Number:* 0584-0081. *Expiration Date:* 1/31/2007. *Type of Request:* Revision of a currently approved information collection. *Abstract:* Section 18(b) of the Food Stamp Act, (the Act) 7 U.S.C. 2027(b), limits the value of allotments paid to food stamp households to an amount not in excess of the appropriation for the fiscal year. If allotments in any fiscal year would exceed the appropriation, the Secretary of Agriculture is required to direct State agencies to reduce the value of food stamp allotments to the extent necessary to stay within appropriated funding limits. Timely State monthly issuance estimates are necessary for FNS to ensure that it remains within the appropriation. The estimates will also have a direct effect upon the manner in which allotments would be reduced if necessary. While benefit reductions have never been ordered in the past under Section 18(b) nor are they anticipated based on current data, the Department must continue to monitor actual program costs against the appropriation. Section 11(e)(12) of the Food Stamp Act, 7 U.S.C. 2020 (e)(12), requires that the State Plan of Operations provide for the submission of reports required by the Secretary of Agriculture. State agencies are required to report on a monthly basis on the FNS-388, State Issuance and Participation Estimates, estimated or actual issuance and participation data for the current month and previous month, and actual participation data for the second preceding month. The FNS-388 report provides the necessary data for an early warning system to enable the Department to monitor actual and estimated costs for all benefit types against the appropriation. State agencies in general only submit one Statewide FNS-388 per month which covers benefits from their electronic benefit transfer

(EBT)system. The exception is that State agencies which choose to operate an approved alternative issuance demonstration project such as a cash-out system submit a separate report for each additional type of issuance system. There has been a small increase in these issuance demonstration and operation projects since the last information collection submission. In addition, State agencies are required to submit a project area breakdown on the FNS-388A of issuance and participation data twice a year. This data is useful in identifying project areas that operate fraud detection units in accordance with the Act. As of June 2006, 90 percent of the total responses submitted the FNS-388 data electronically and 10 percent submitted paper reports. As of March 2006, the last time the FNS-388A was submitted, 73 percent of the total response submitted FNS-388A data electronically and 27 percent submitted paper reports. *Respondents:* State agencies that administer the Food Stamp Program. *Estimated Number of Respondents:* 53. *Estimated Number of Responses per Respondent:* 13.81 *Estimated Hours per Response:* 7.14 *Estimated Total Annual Burden on Respondents:* The annual reporting and recordkeeping burden for OMB No. 0584-0081 is estimated to be 5,226 hours. This is an increase of 683.7 hours due to an increase in the number of responses from State agencies. Dated: November 17, 2006. Roberto Salazar, Administrator. [FR Doc. E6-19986 Filed 11-24-06; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Forest Service Ely Westside Rangeland Project AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The Ely Ranger District, Humboldt-Toiyabe National Forest will prepare an environmental impact statement

(EIS)on a proposal to authorize continued livestock grazing within the Ely Westside Rangeland Project area. The analysis will determine if a change in management direction for livestock grazing is needed to move existing resource conditions within the Ely Westside Rangeland Project area towards desired conditions. Allotments within the project area are Big Creek, Black Rock, Cherry Creek, Currant Creek, Ellison Basin, Hooper Canyon, Irwin Canyon, Illipah, Pine/Quinn Creek, Tom Plain, Treasure Hill, and Troy Mountain. The Black Rock, Cherry Creek, Currant Creek, Ellison Basin, Illipah, Pine/Quinn Creek, Tom Plain, and Treasure Hill, are currently permitted for grazing; Big Creek, Hooper Canyon, and Irwin Canyon allotments are currently vacant; and the Troy Mountain Allotment is currently closed. These allotments are in Lincoln, Nye, and White Pine Counties, Nevada. DATES: Comments concerning the scope of the analysis are due by January 15, 2007. The draft environmental impact statement is expected May 2007 and the final environmental impact statement is expected September 2007. ADDRESSES: Send written comments to District Ranger, Ely Ranger District, 825 Ave. E, Ely, Nevada 89301. FOR FURTHER INFORMATION CONTACT: For further information, mail correspondence to or contact David Palmer, Project Coordinator, at the Ely Ranger District, 825 Ave. E, Ely Nevada 89301. The telephone number is 775-289-5116. E-mail address is *dmpalmer@fs.fed.us.* Purpose and Need for Action There is a need to maintain or improve the condition of riparian resources and maintain or improve the overall health of the rangeland in the Ely Westside Rangeland Project area. The purpose of this project is to determine the management direction for livestock grazing needed to move existing resource conditions within the project area towards desired conditions. Proposed Action The Ely Ranger District, Humboldt-Toiyabe National Forest, is proposing to authorize continued domestic livestock grazing on approximately 569,000 acres within the Ely Westside Rangeland Project area under updated grazing management direction in order to move existing rangeland resource conditions within the project area toward desired condition. The updated direction will be incorporated in attendant grazing permits and allotment management plans to guide grazing management within the project area during the coming decade, or until amendments are warranted, based on changed condition or monitoring. The Black Rock, Cherry Creek, Currant Creek, Ellison Basin, Illipah, Pine/Quinn Creek, Tom Plain, and Treasure Hill, allotments would continue to have authorized grazing. A portion of the Troy Mountain Allotment, which is currently closed, would be re-opened to livestock grazing; the rest of the allotment would remain closed. Big Creek, Hooper Canyon, and Irwin Canyon allotments are currently vacant and would be recommended for closure. Possible Alternatives In addition to the proposed action, we have tentatively identified two additional alternatives that will be analyzed in the EIS. (1.) *No Action/No Grazing:* This is not issuing new grazing permits when existing permits expire. (2.) *Current Management:* This is continuation of current grazing management. Responsible Official Patricia N. Irwin, District Ranger, Ely Ranger District, 825 Ave. E, Ely, Nevada 89301 Nature of Decision To Be Made Based on the environmental analysis in the EIS the Forest Supervisor will decide whether to continue grazing on the allotments within the Ely Westside Rangeland Project area, in accordance with the strategies in the proposed action or as modified by additional mitigation measures and monitoring requirements. Scoping Process The Forest Service will use a mailing of information to interested parties. Public involvement will be ongoing throughout the analysis process and at certain times, public input will be specifically requested. There are currently no scoping meetings planned. Preliminary Issues The following are some potential issues identified through internal Forest Service scoping based on our experience with similar projects. The list is not considered all-inclusive, but should be viewed as a starting point. We are asking you to help us further refine the issues and identify other issues or concerns relevant to the proposed project. • Continued livestock grazing has the potential to affect water quality within the project area. • Continued livestock grazing has the potential to affect heritage resources within the project area. • Continued livestock grazing has the potential to affect soil quality within the project area. • Continued livestock grazing has the potential to affect upland and riparian vegetation within the project area. • Continued livestock grazing has the potential to affect the health of some aspen stands within the project area. • Continued livestock grazing has the potential to affect wildlife habitat, particularly for elk and sage grouse, within the project area. • Continued livestock grazing has the potential to affect fisheries habitat within the project area. *Comment Requested:* This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. Submit comments stating your concerns and issues that are relevant to the proposed project. Comments will be used to help establish the scope or studies and analysis for the environmental impact statement. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register.** The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978). In addition, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal, and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21). Dated: November 9, 2006. Patricia N. Irwin, District Ranger. [FR Doc. 06-9388 Filed 11-24-06; 8:45 am]

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