19424 Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Rules and Regulations 

Dated: April 14, 2009. 

T.H. Farris, 

Captain, U.S. Coast Guard, Captain of the 

Port, San Diego. 

[FR Doc. E9–9718 Filed 4–28–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0263] 

RIN 1625–AA00 

Safety Zone; Mill Creek, Fort Monroe, 

VA, USNORTHCOM Civic Leader Tour 

and Aviation Demonstration 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a safety zone on Mill Creek 

in the vicinity of the Fort Monroe 

Military Reservation, VA during the 

USNORTHCOM Civic Leader Tour 

Event and Aviation Demonstration. This 

action is intended to restrict vessel 

traffic movement in the vicinity of Mill 

Creek to protect mariners and the public 

from the hazards associated with 

aviation events. 

DATES: This rule is effective from 9 a.m. 

until 11:30 a.m. and from 1:30 p.m. to 

4 p.m. on April 28, 2009, and from 2:30 

p.m. to 4:30 p.m. on April 29, 2009. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2009– 

0263 and are available online by going 

to http://www.regulations.gov, selecting 

the Advanced Docket Search option on 

the right side of the screen, inserting 

USCG–2009–0263 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. They are 

also available for inspection or copying 

at two locations: the Docket 

Management Facility (M–30), U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule, call or e-mail Lieutenant Tiffany 

Duffy, Chief, Waterways Management, 

Sector Hampton Roads, Coast Guard; 

telephone 757–668–5580, e-mail 

Tiffany.A.Duffy@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

The Coast Guard is issuing this 

temporary final rule without prior 

notice and opportunity to comment 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because 

delaying the effective date would be 

contrary to the public interest since 

immediate action is needed to ensure 

the safety of the public and mariners 

during the aviation demonstration. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date 

would be contrary to the public interest 

since immediate action is needed to 

ensure the safety of the public and 

mariners during the aviation 

demonstration. 

Background and Purpose 

Coast Guard Sector Hampton Roads 

has been notified that the Fort Monroe 

Military Reservation will host an 

aviation event in the vicinity of Fort 

Monroe Military Reservation 

immediately adjacent to Mill Creek, VA. 

The event is scheduled to occur on 

April 29, 2009, with a rehearsal day on 

April 28, 2009. In recent years, there 

have been unfortunate instances of 

crashes during aviation demonstrations. 

Accompanying a plane crash, there is 

typically a wide area of scattered debris 

that may also damage property and 

cause significant injury or death to those 

observing the demonstration. Due to the 

need to protect the public and mariners 

transiting on Mill Creek in the vicinity 

of the demonstration from the hazards 

associated with a potential crash, the 

Coast Guard is establishing a safety zone 

bound by a 1,320 foot radius around 

approximate position 37°04′04′′ N/ 

076°18′04′′ W (NAD 1983). Access to 

this area will be temporarily restricted 

for public safety purposes. 

Discussion of Rule 

The Coast Guard is establishing a 

1,320 foot radius safety zone on 

specified waters of Mill Creek around 

approximate position 37°04′04′′ N/ 

076°18′04′′ W (NAD 1983) in the 

vicinity of the Fort Monroe Military 

Reservation, Virginia. This safety zone 

is proposed in the interest of public 

safety during the USNORTHCOM Civic 

Leader Tour Aviation Demonstration 

and will be enforced from 9 a.m. to 

11:30 a.m. and 1:30 p.m. to 4 p.m. on 

April 28, 2009, and from 2:30 p.m. to 

4:30 p.m. on April 29, 2009. Access to 

the safety zone will be restricted during 

the specified dates and times. Except for 

vessels authorized by the Captain of the 

Port or his Representative, no person or 

vessel may enter or remain in the safety 

zone. 

Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. Although this regulation restricts 

access to the safety zone, the effect of 

this rule will not be significant because: 

(i) the safety zone will be in effect for 

a limited duration; (ii) the safety zone is 

of limited size; and (iii) the Coast Guard 

will make notifications via maritime 

advisories so mariners can adjust their 

plans accordingly so as to avoid any 

potential delays in transit. For the above 

reasons, the Coast Guard does not 

anticipate any significant economic 

impact. 

Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

The Coast Guard certifies under 5 

U.S.C. 605(b) that this rule will not have 

a significant economic impact on a 

substantial number of small entities. 

This rule will affect the following 

entities, some of which may be small 

entities: The owners or operators of 


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Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Rules and Regulations 19425 

vessels intending to transit or anchor in 

a portion of Mill Creek from 9 a.m. to 

11:30 a.m. and from 1:30 p.m. to 4 p.m. 

on April 28, 2009, and from 2:30 p.m. 

to 4:30 p.m. on April 29, 2009. 

This safety zone will not have a 

significant economic impact on a 

substantial number of small entities for 

the following reasons. The safety zone 

will only be in place for a limited 

duration and is of a limited size. Before 

the effective period, the Coast Guard 

will issue maritime orders allowing 

mariners to adjust their plans 

accordingly so as to avoid any potential 

delays in transit. 

Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we offer to assist small entities in 

understanding the rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking process. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1– 

888–REG–FAIR (1–888–734–3247). The 

Coast Guard will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of the Coast Guard. 

Collection of Information 

This rule calls for no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

Taking of Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves a temporary safety zone that 

will be in effect for less than one week 

and is intended to keep the public and 

mariners safe from the hazards 

associated with aviation displays. An 

environmental analysis checklist and a 

categorical exclusion determination are 

available in the docket where indicated 

under ADDRESSES. 

List of Subjects 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165–REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

3306, 3703 and Chapter 701; 50 U.S.C. 191, 

195; 33 CFR 1.05–1, 6.04–1, 6.04–6 and 

160.5; Public Law 107–295, 116 Stat. 2064; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Add § 165.T05–0263 to read as 

follows: 


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19426 Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Rules and Regulations 

§ 165.T05–0263 Safety Zone: Mill Creek, 

Fort Monroe, VA, USNORTHCOM Civic 

Leader Tour and Aviation Demonstration. 

(a) Regulated Area. The following area 

is a safety zone: All waters in the 

vicinity of the Fort Monroe Military 

Reservation on Mill Creek within a 

1,320 foot radius of position 037°04′04′′ 

N/076°18′04′′ W (NAD 1983). 

(b) Definition: For the purposes of this 

part, Captain of the Port Representative: 

means any U.S. Coast Guard 

commissioned, warrant or petty officer 

who has been authorized by the Captain 

of the Port, Hampton Roads, Virginia to 

act on his behalf. 

(c) Regulations: (1) In accordance with 

the general regulations in § 165.23 of 

this part, entry into this zone is 

prohibited unless authorized by the 

Captain of the Port, Hampton Roads or 

his designated representatives. 

(2) The operator of any vessel in the 

immediate vicinity of this safety zone 

shall: 

(i) Stop the vessel immediately upon 

being directed to do so by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(ii) Proceed as directed by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads can be contacted on VHF–FM 

marine band radio channel 16 (156.8 

Mhz) or at telephone number 757–668– 

5555. 

(4) The Coast Guard Representatives 

enforcing the safety zone can be 

contacted on VHF–FM marine band 

radio channel 13 (165.65 Mhz) and 

channel 16 (156.8 Mhz). (d) 

Enforcement Period: This regulation 

will be enforced from 9 a.m. to 11:30 

a.m. and from 1:30 p.m. to 4 p.m. on 

April 28, 2009, and from 2:30 p.m. to 

4:30 p.m. on April 29, 2009. 

Dated: April 10, 2009. 

J.P. Novotny, 

Commander, U.S. Coast Guard, Captain of 

the Port, Hampton Roads, Acting. 

[FR Doc. E9–9798 Filed 4–28–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 51 and 58 

RIN 2900–AM97 

Per Diem for Nursing Home Care of 

Veterans in State Homes 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) amends its regulations 

which set forth a mechanism for paying 

per diem to State homes providing 

nursing home care to eligible veterans. 

More specifically, we are updating the 

basic per diem rate, implementing 

provisions of the Veterans Benefits, 

Health Care, and Information 

Technology Act of 2006, and making 

several other changes to better ensure 

that veterans receive quality care in 

State homes. 

DATES: Effective date: May 29, 2009. The 

incorporation by reference of certain 

publications listed in this rule is 

approved by the Director of the Federal 

Register as of May 29, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Theresa Hayes at (202) 461–6771 (for 

issues concerning per diem payments), 

and Christa Hojlo, PhD at (202) 461– 

6779 (for all other issues raised by this 

document), Office of Geriatrics and 

Extended Care, Veterans Health 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420. (The telephone 

numbers set forth above are not toll-free 

numbers.) 

SUPPLEMENTARY INFORMATION: This 

document amends the regulations at 38 

CFR part 51 (referred to below as the 

regulations), which set forth a 

mechanism for paying per diem to State 

homes providing nursing home care to 

eligible veterans. Under the regulations, 

VA pays per diem to a State for 

providing nursing home care to eligible 

veterans in a facility if the Under 

Secretary for Health recognizes the 

facility as a State home based on a 

determination that the facility meets the 

standards set forth in subpart D of the 

regulations. The standards set forth 

minimum requirements that are 

intended to ensure that VA pays per 

diem for eligible veterans only if the 

State homes provide quality care. This 

document also makes corresponding 

changes concerning VA forms set forth 

at 38 CFR part 58. 

This final rule is based on a proposed 

rule published in the Federal Register 

on November 28, 2008 (73 FR 72399). 

The proposed rule called for a 30 day 

comment period that ended on 

December 29, 2008. We received a 

number of comments from eight 

commenters (one commenter provided 

two submissions). One commenter 

merely agreed with the proposed 

changes. The other comments are 

discussed below. Based on the rationale 

set forth in the proposed rule and this 

document, we have adopted the 

provisions of the proposed rule as a 

final rule with changes discussed below. 

Nurse Practitioners 

Proposed § 51.2 defined the term 

‘‘nurse practitioner’’ as ‘‘a licensed 

professional nurse who is currently 

licensed to practice in the State; who 

meets the State’s requirements 

governing the qualifications of nurse 

practitioners; and who is currently 

certified as an adult, family, or 

gerontological nurse practitioner by a 

nationally recognized body that 

provides such certification for nurse 

practitioners, such as the American 

Nurses Credentialing Center or the 

American Academy of Nurse 

Practitioners.’’ 

Three commenters argued directly or 

implicitly that certification is not 

essential for the provision of high 

quality care and that licensure is a 

sufficient measure of competence. One 

of the commenters argued that national 

certification would create an undue 

burden for nurse practitioners (‘‘enroll 

in an exam course, pay for course work, 

travel, lodging and registration fees, and 

sit for the exam’’) and indicated that 

some may fail the exam or fail to meet 

renewal requirements. The commenter 

further asserted that nurse practitioners 

who are currently employed should be 

subject to a grandfather clause that 

allows them to work as nurse 

practitioners without national 

certification. We made no changes based 

on these comments. The proposed rule 

did not create a new certification 

requirement but merely broadened the 

list of certifying organizations to any 

nationally recognized certifying body 

because the previously listed 

organization does not provide such 

certification. 

Recognition and Certification 

Proposed § 51.30(a)(1) provided that 

VA would not conduct the recognition 

survey until the new facility has at least 

21 residents or the number of residents 

consists of at least 50 percent of the new 

bed capacity of the facility. 

One commenter seemed to read the 

provisions at proposed § 51.30(a)(1) by 

associating the portion of the formula 

regarding 21 residents with new 

facilities and associating the portion of 

the formula regarding 50 percent of the 

new bed capacity to renovations. This is 

not what was intended. Both portions of 

the formula were intended to apply to 

recognition surveys. Accordingly, we 

clarified the regulation to state that the 

recognition survey will be conducted 

only after the new facility either has at 

least 21 residents or has a number of 

residents that consist of at least 50 

percent of the new bed capacity of the 

new facility. We also note that under 


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