13346 Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Rules and Regulations 

SUMMARY: This correcting amendment 

corrects a technical error in the 

amendatory instructions of the 

regulations text in the final rule entitled 

‘‘Medicare Program; Surety Bond 

Requirement for Suppliers of Durable 

Medical Equipment, Prosthetics, 

Orthotics, and Supplies (DMEPOS)’’ 

published in the January 2, 2009 

Federal Register (74 FR 166). In that 

final rule, we implemented section 

1834(a)(16)(B) of the Social Security Act 

(the Act) requiring certain Medicare 

suppliers of durable medical equipment, 

prosthetics, orthotics and supplies 

(DMEPOS) to furnish CMS with a surety 

bond. In addition, in the January 2, 2009 

final rule, we responded to public 

comments on the August 1, 2007 

proposed rule (72 FR 42001). The 

effective date for the January 2, 2009 

final rule was March 3, 2009. 

DATES: Effective Date: This correcting 

amendment is effective March 27, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Frank Whelan, (410) 786–1302. 

SUPPLEMENTARY INFORMATION: 

I. Background and Summary of Error 

In FR Doc. E8–30802 issued on 

January 2, 2009 (74 FR 166), the final 

rule entitled ‘‘Medicare Program; Surety 

Bond Requirement for Suppliers of 

Durable Medical Equipment, 

Prosthetics, Orthotics, and Supplies 

(DMEPOS), there was a technical error 

that is identified and corrected in this 

document. The error was the result of a 

conflicting amendatory instruction in 

the ‘‘Payment Policies Under the 

Physician Fee Schedule and Other 

Revisions to Part B for CY 2009’’ final 

rule with comment period (73 FR 

69726) that was effective January 1, 

2009. The correction in this correcting 

amendment is effective on March 27, 

2009. 

On page 198 of the January 2, 2009 

final rule, we made a technical error in 

the amendatory instruction for § 424.57. 

In the first amendatory instruction 2.D., 

the phrase ‘‘Redesignating paragraphs 

(d) and (e) as paragraphs (e) and (f)’’ 

should be corrected to read 

‘‘Redesignating paragraphs (d) and (e) as 

paragraphs (e) and (g).’’ 

II. Waiver of Proposed Rulemaking and 

Delay in Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before the provisions of a 

notice such as this take effect, in 

accordance with section 553(b) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). We also ordinarily 

provide a 30-day delay in the effective 

date of the provisions of a notice in 

accordance with section 553(d) of the 

APA (5 U.S.C. 553(d)). However, we can 

waive both the notice and comment 

procedure and the 30-day delay in 

effective date if the Secretary finds, for 

good cause, that it is impracticable, 

unnecessary or contrary to the public 

interest to follow the notice and 

comment procedure or to comply with 

the 30-day delay in the effective date, 

and incorporates a statement of the 

findings and the reasons in the notice. 

This action merely corrects a 

technical error in the January 2, 2009 

final rule that was promulgated through 

notice and comment rulemaking. We are 

in no way changing the policy 

contained in that rule. For this reason, 

we find that both notice and comment 

and the 30-day delay in effective date 

for this action are unnecessary. 

Therefore, we find there is good cause 

to waive notice and comment 

procedures and the 30-day delay in 

effective date for this action. 

List of Subjects in 42 CFR Part 424 

Emergency medical services, Health 

facilities, Health professions, Medicare. 

■ For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 42 CFR 

chapter IV as set forth below: 

PART 424—CONDITIONS FOR 

MEDICARE PAYMENT 

■ 1. The authority citation for part 424 

is revised to read as follows: 

Authority: Secs. 1102 and 1871 of the 

Social Security Act (42 U.S.C. 1302 and 

1395hh). 

Subpart D—To Whom Payment Is 

Ordinarily Made 

§ 424.57 [Amended] 

■ 2. Section 424.57 is amended by 

redesignating paragraphs (d) and (e) as 

paragraphs (e) and (g). 

Authority: Catalog of Federal Domestic 

Program No. 93.774, Medicare— 

Supplementary Medical Insurance Program. 

Dated: March 17, 2009. 

Ashley Files Flory, 

Acting Executive Secretary to the Department. 

[FR Doc. E9–6778 Filed 3–26–09; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 447 and 457 

[CMS–2244–F3] 

RIN 0938–A047 

Medicaid Program; Premiums and Cost 

Sharing 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; delay of effective 

date and reopening of comment period. 

SUMMARY: This action temporarily 

delays the effective date of the 

November 25, 2008 final rule entitled, 

‘‘Medicaid Program; Premiums and Cost 

Sharing’’ (73 FR 71828) until December 

31, 2009. In addition, this action 

reopens the comment period on the 

policies set out in the November 25, 

2008 final rule, and specifically solicits 

comments on the effect of certain 

provisions of the American Recovery 

and Reinvestment Act of 2009. 

DATES: Effective Date. This action is 

effective March 26, 2009. The effective 

date of the rule amending 42 CFR parts 

447 and 457 published in the November 

25, 2008 Federal Register (73 FR 71828) 

is delayed until December 31, 2009. 

Comment Period. To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

April 27, 2009. 

ADDRESSES: In commenting, please refer 

to file code CMS–2244–F3. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions for ‘‘Comment or 

Submission’’ and enter the file code to 

find the document accepting comments. 

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–2244– 

F3, P.O. Box 8010, Baltimore, MD 

21244–8010. 

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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Rules and Regulations 13347 

original and two copies) to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2244–F3, Mail Stop C4–26–05, 

7500 Security Boulevard, Baltimore, MD 

21244–8010. 

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 either of the 

following addresses: 

a. Room 445–G, Hubert H. Humphrey 

Building, 200 Independence Avenue, 

SW., Washington, DC 20201. 

(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.) 

b. 7500 Security Boulevard, 

Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

9994 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

FOR FURTHER INFORMATION CONTACT: 

Christine Gerhardt, (410) 786–0693. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Regulatory History 

On November 25, 2008, we published 

a final rule entitled ‘‘Medicaid Program; 

Premiums and Cost Sharing’’ in the 

Federal Register to implement and 

interpret the provisions of sections 

6041, 6042, and 6043 of the Deficit 

Reduction Act of 2005 (DRA), and 

section 405(a)(1) of the Tax Relief and 

Health Care Act of 2006 (TRHCA) (73 

FR 71828). The DRA was amended by 

the TRHCA which revised sections 

6041, 6042, and 6043 of the DRA 

including limitations on cost sharing for 

individuals with family incomes at or 

below 100 percent of the Federal 

poverty line. These sections amended 

the Social Security Act (the Act) by 

adding a new section 1916A to provide 

State Medicaid agencies with increased 

flexibility to impose premium and cost 

sharing requirements on certain 

Medicaid recipients. The final rule 

allowed for flexibility to supplement the 

existing authority States have to impose 

premiums and cost sharing under 

section 1916 of the Act. The DRA 

provisions also specifically address cost 

sharing for non-preferred drugs and 

non-emergency care furnished in a 

hospital emergency department. In 

addition, in the November 25, 2008 final 

rule, we responded to public comments 

on the February 22, 2008 proposed rule 

(73 FR 9727). 

Subsequent to the publication of the 

November 25, 2008 final rule, in 

accordance with the memorandum of 

January 20, 2009 from the Assistant to 

the President and the Chief of Staff, 

entitled ‘‘Regulatory Review,’’ we 

published a final rule in the Federal 

Register to temporarily delay for 60 

days the effective date of the November 

25, 2008 final rule entitled, ‘‘Medicaid 

Program; Premiums and Cost Sharing’’ 

(January 27, 2009, 74 FR 4888). The 

final rule also reopened the comment 

period on the policies set out in the 

November 25, 2008 final rule. We 

received 5 public comments in response 

to the January 27, 2009 final rule. 

B. New Legislation 

The American Recovery and 

Reinvestment Act of 2009 (ARRA), Pub. 

L. 111–5, was enacted on February 17, 

2009. Certain provisions of ARRA affect 

current regulations regarding premiums 

and cost sharing. Specifically, section 

5006(a) of ARRA added section 1916(j) 

to the Social Security Act (the Act) to 

provide that effective December 31, 

2009, the Medicaid program and the 

Children’s Health Insurance Program 

(CHIP) are prohibited from imposing an 

enrollment fee, premium, or similar 

charge, or deduction, copayment, costsharing or similar charge on American 

Indians and Alaska Natives for services 

provided directly by the Indian Health 

Service, an Indian Tribe, Tribal 

Organization, or Urban Indian 

Organization or through referral under 

contract health services for which 

payment may be made. 

II. Provisions of the Final Rule 

This action delays the effective date of 

the November 25, 2008 final rule. The 

effective date of that rule, which would 

have been March 27, 2009, is now 

December 31, 2009. Upon review and 

consideration of the new provisions of 

ARRA and the public comments we 

received during the reopened comment 

period, we believe that it may be 

necessary to revise a substantial portion 

of the November 25, 2008 final rule. 

Therefore, to inform future rulemaking 

on this issue, we are delaying the 

effective date a second time to give the 

public an additional opportunity to 

submit additional comments on the 

policy set forth in the November 25, 

2008 final rule as well as the provisions 

of ARRA, discussed above. We 

anticipate that this time period will 

allow sufficient time for CMS to 

consider such comments and develop 

appropriate revisions to the delayed 

rule. 

IV. Waiver of Proposed Rulemaking 

and Delay in Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before the provisions of a 

notice such as this take effect, in 

accordance with section 553(b) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). We also ordinarily 

provide a 30-day delay in the effective 

date of the provisions of a notice in 

accordance with section 553(d) of the 

APA (5 U.S.C. 553(d)). However, we can 

waive both the notice and comment 

procedure and the 30-day delay in 

effective date if the Secretary finds, for 

good cause, that it is impracticable, 

unnecessary or contrary to the public 

interest to follow the notice and 

comment procedure or to comply with 

the 30-day delay in the effective date, 

and incorporates a statement of the 

finding and the reasons in the notice. 

This final rule delays the effective 

date of the final rule that was 

promulgated through notice and 

comment rulemaking, and does not 

make substantive changes to the policies 

that were finalized in the final rule. 

Delay in the effective date and 

reopening of the comment period is 

necessary to ensure that the final rule 

fully takes into account public 

comments, and conforms to recently 

enacted legislation, before the rule 

becomes effective. We do not believe 

that there will be any adverse impact or 

effect on the public from this delay in 

the effective date. Moreover, it would 

not be in the public interest for the 

underlying rule to go into effect, or to 

have uncertainty about whether it is in 

effect, when the underlying rule does 

not conform to statutory requirements. 

In addition, it is not in the public 

interest to put into effect a rule that we 

intend to revise in a reasonable time 

frame after fully taking into account 

public comment. For the reasons stated 

above, we find that both notice and 

comment procedures and the 30-day 

delay in effective date for this final rule 

are unnecessary and contrary to the 

public interest. Therefore, we find there 

is good cause to waive notice and 

comment procedures and the 30-day 

delay in effective date for this final rule. 


sroberts on PROD1PC70 with RULES
13348 Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Rules and Regulations 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: March 20, 2009. 

Charlene Frizzera, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: March 24, 2009. 

Charles E. Johnson, 

Acting Secretary. 

[FR Doc. E9–6907 Filed 3–24–09; 4:15 pm] 

BILLING CODE 4120–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090311306–9309–01] 

RIN 0648–XN88 

Fisheries of the Northeastern United 

States; Summer Flounder, Scup, and 

Black Sea Bass Fisheries; 2009 Scup 

and Black Sea Bass Specifications; 

Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; correction. 

SUMMARY: On January 2, 2009, NMFS 

published in the Federal Register a final 

rule containing final specifications for 

the 2009 scup and black sea bass 

fisheries. On six occasions in the 

preamble text of that rule, the English 

system of measurement in pounds for 

various iterations of the scup and black 

sea bass specifications were incorrectly 

converted into metric system of 

measurement equivalents. This 

document corrects those values to 

insure that the metric values are 

consistent with the 2009 specifications. 

DATES: Effective March 27, 2009, 

through December 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Michael Ruccio, Fishery Policy Analyst, 

(978) 281–9104. 

SUPPLEMENTARY INFORMATION: The final 

rule, including final quota specifications 

(i.e., commercial quota and recreational 

harvest limit) for the 2009 summer 

flounder, scup, and black sea bass 

fisheries was published in the Federal 

Register on January 2, 2009 (74 FR 29). 

On page 32, in the first column, the 

proposed scup Total Allowable Catch 

(TAC) is listed as 5,339 metric tons (mt), 

the TAC implemented by the final rule 

in the second column is listed as 5,796 

mt, and the Total Allowable Landings 

(TAL) is listed as 4, 170 mt. In the third 

column, the commercial quota is listed 

at 3,123 mt, and the recreational harvest 

limit is listed as 965 mt. 

The corrected values for these scup 

specification values are as follows: The 

2009 proposed TAC is 5,307 mt, the 

final rule TAC is 7,049 mt, the final rule 

TAL is 5,071 mt, the commercial quota 

is 3,798 mt, and the recreational harvest 

limit is 1,173 mt. 

The black sea bass commercial quota 

in the first column of page 35 is listed 

as 1,043 mt. The corrected value for the 

commercial quota is 495 mt. 

Classification 

Pursuant to 5 U.S.C. 553(b)(B), the 

Assistant Administrator finds good 

cause to waive prior notice and 

opportunity for additional public 

comment for this action because any 

delay of this action would be contrary 

to the public interest. As explained 

above, this rule corrects various metric 

values for the 2009 scup TAC, TAL, 

commercial quota, and recreational 

harvest limit and black sea bass 

commercial quota that had already been 

published in the Federal Register. In the 

final specifications rule published 

January 2, 2009 (74 FR 29), the various 

quota iterations were correctly listed in 

the English system of measurement. 

These values were inadvertently 

converted to the metric system utilizing 

the incorrect conversion factor and thus, 

the metric values listed in the final 

specifications rule are not correct or 

equal to the English system values. To 

delay this correction notice would cause 

confusion over the aforementioned 

available 2009 scup and black sea bass 

harvest levels because of the disparity 

between the English system of 

measurement, in pounds, and the metric 

expression of those same values, in 

metric tons that were incorrectly 

converted in the original specifications 

that published January 2, 2009 (74 FR 

29). Moreover, pursuant to 5 U.S.C. 

553(d), the Assistant Administrator 

finds good cause to waive the 30-day 

delay in effective date for the reasons 

given above. Delaying the rule for 30 

days may negatively impact fishermen 

accustomed to referring to the metric 

system of measurement because the 

values for the aforementioned harvest 

levels were incorrectly converted from 

the English system of measurement in 

the final specifications. The immediate 

publication of the correct information 

will rectify any confusion on the matter 

of what the metric expression of the 

2009 scup and black sea bass harvest 

levels should be. 

Because prior notice and opportunity 

for public comment are not required for 

this rule by 5 U.S.C. 553, or any other 

law, the analytical requirements of the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et seq., are inapplicable. 

This final rule is exempt from review 

under Executive Order 12866. 

Correction 

Accordingly, the final rule FR Doc. 

E8–31236, published on January 2, 2009 

(74 FR 29), is corrected as follows: 

1. On page 32: 

a. In the first column, in the last 

paragraph, in the seventh line, ‘‘(5, 339– 

mt) scup Total Allowable Catch’’ is 

corrected to read ‘‘(5,307- mt) , scup 

Total Allowable Catch’’ and in the 

second column, in the last paragraph, in 

the second line, ‘‘(5,796–mt) scup TAC’’ 

is corrected to read ‘‘(7,049 -mt) scup 

TAC’’, and in the third line, ‘‘(4,170–mt) 

scup TAL.’’is corrected to read ‘‘(5,071- 

mt) scup TAL’’. 

b. In the third column, in the seventh 

line, ‘‘commercial quota of 8,373,848 lb 

(3,123 mt) is corrected to read 

‘‘commercial quota of 8,373,848 lb 

(3,798 mt) and in the eighth and ninth 

lines, ‘‘recreational harvest limit of 

2,585,952 lb (965 mt).’’ is corrected to 

read ‘‘recreational harvest limit of 

2,585,952 lb (1, 173 mt).’’ 

2. On page 35, in the first column, in 

the fourth line, ‘‘(1,048–mt) black sea 

bass TAL.’’ is corrected to read ‘‘(495– 

mt) black sea bass TAL.’’ 

Dated: March 23, 2009 

Samuel D. Rauch III, 

Deputy Assistant Administrator For 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E9–6898 Filed 3–26–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080103016–9316–02] 

RIN 0648–AW40 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Revise Maximum 

Retainable Amounts of Groundfish 

Using Arrowtooth Flounder as a Basis 

Species in the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues a regulation to 

revise the maximum retainable amounts 


sroberts on PROD1PC70 with RULES