16510 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

this rulemaking, and include

explanations in support of the

commenter’s recommendations.

Comments received after the time

indicated under DATES or at locations

other than the Big Stone Gap Field

Office will not necessarily be

considered in the final rulemaking or

included in the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12778

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15 and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA [30 U.S.C. 1292(d)]

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

which is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 946

Intergovernmental relations, Surface

mining, Underground mining.

Dated: March 26, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

[FR Doc. 97–8789 Filed 4–4–97; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

Civilian Health and Medical Program of

the Uniformed Services (CHAMPUS);

TRICARE Program; Nonavailability

Statement Requirements

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

SUMMARY: This proposed rule revises

certain requirements and procedures for

the TRICARE Program, the purpose of

which is to implement a comprehensive

managed health care delivery system

composed of military medical treatment

facilities and CHAMPUS. Issues

addressed in this proposed rule include

priority for access to care in military

treatment facilities and requirements for

payment of enrollment fees. This

proposed rule also includes provisions

revising the requirement that certain

beneficiaries obtain a non-availability

statement from a military treatment

facility commander prior to receiving

certain health care services from civilian

providers.

DATES: Comments must be received on

or before June 6, 1997.

ADDRESSES: Forward comments to

Office of the Civilian Health and

Medical Program of the Uniformed

Services (OCHAMPUS), Program

Development Branch, Aurora, CO

80045–6900.

FOR FURTHER INFORMATION CONTACT:

Steve Lillie, Office of the Assistant

Secretary of Defense (Health Affairs),

telephone (703) 695–3350.

Questions regarding payment of

specific claims under the CHAMPUS

allowable charge method should be

addressed to the appropriate CHAMPUS

contractor.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

A. Congressional Action

Section 712 of the National Defense

Authorization Act for Fiscal Year 1996

revised 10 U.S.C. 1097(c), regarding the

role of military medical treatment

facilities in managed care initiatives,

including TRICARE. Prior to the

revision, section 1097(c) read in part,

‘‘However, the Secretary may, as an

incentive for enrollment, establish

reasonable preferences for services in

facilities of the uniformed services for

covered beneficiaries enrolled in any

program established under, or operating

in connection with, any contract under

this section.’’ The Authorization Act

provision replaced ‘‘may’’ with ‘‘shall’’,

which has the effect of directing priority

access for TRICARE Prime enrollees

over persons not enrolled.

Another statutory provision relating

to access priority is 10 U.S.C. 1076(a),

which establishes a special priority for

survivors of sponsors who died on

active duty: they are given the same

priority as family members of active

duty members. This special access

priority is not time-limited, as is the

special one-year cost sharing protection

given to this category under 10 U.S.C.

1079.

The National Defense Authorization

Act for FY 1997, section 734 amended

10 U.S.C. 1080 to establish certain

exceptions to requirements for

nonavailability statements in

connection with payment of claims for

civilian health care services. First, the

Act eliminates authority for

nonavailability statements for outpatient

services; NASs have been required for a

limited number of outpatient

procedures over the past several years.

Second, the Act eliminates authority for

NAS requirements for enrollees in

managed care plans, which has the

effect of eliminating NAS requirements

for TRICARE Prime enrollees. Finally,

the Act gives the Secretary authority to

waive NAS requirements based on an
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16511

evaluation of the effectiveness of NAS

in optimizing use of military facilities.

The National Defense Authorization

Act for FY 1996, section 713 requires

that enrollees in TRICARE Prime be

permitted to pay applicable enrollment

fees on a quarterly basis, and prohibits

imposition of an administrative fee

related to the quarterly payment option.

B. Provisions of the Proposed Rule

1. Access Priority (proposed revisions

to section 199.17(d)). This paragraph

explains that in regions where TRICARE

is implemented, the order of access

priority for services in military

treatment facilities is as follows: (1)

active duty service members; (2) family

members of active duty service members

enrolled in TRICARE Prime; (3) retirees,

their family members and survivors

enrolled in TRICARE Prime; (4) family

members of active duty service members

who are not enrolled in TRICARE

Prime; and (5) all others based on

current access priorities. For purposes

of access priority, but not for cost

sharing, survivors of sponsors who died

on active duty are to be given the same

priority as family members of active

duty service members. This means that

if they are enrolled in TRICARE Prime,

they have the same access priority as

family members of active duty service

members, or if not enrolled in TRICARE

Prime, they have the same access

priority for military treatment facility

care as family members of active duty

service members who are not enrolled

in TRICARE Prime.

The proposed rule also includes a

provision explaining that enrollment

status does not affect access priority for

some groups and circumstances. This

provision would allow the commander

of a military medical treatment facility

to designate for priority access certain

individuals, for specific episodes of

health care treatment. Such individuals

may include Secretarial designees,

active duty family members from

outside the MTF’s service area, foreign

military and their family members

authorized care through international

agreements, DoD civilians with

authorizing conditions, individuals on

the Temporary Disability Retired List,

and Reserve and National Guard

members. Additional exceptions may be

granted for other categories of

individuals, eligible for treatment in the

MTF, whose access to care is needed to

provide a clinical case mix to support

graduate medical education programs,

upon approval by the Assistant

Secretary of Defense (Health Affairs).

2. Enrollment Fees (proposed

revisions to section 199.17(o) and

199.18(c)). These revisions would

eliminate the requirement for a

TRICARE Prime enrollee to pay an

additional maintenance fee of $5.00 per

installment for those TRICARE Prime

enrollees who elect to pay their annual

enrollment fee on a quarterly basis.

Additionally, these revisions would

permit waiver of enrollment fee

collection for retirees, their family

members, and survivors who are eligible

for Medicare on the basis of disability.

This group is eligible for TRICARE/

CHAMPUS as a secondary payor if they

are enrolled in Part B of Medicare, and

pay the applicable monthly premium.

3. Nonavailability Statements

(proposed revisions to section 199.4(a)).

Revisions to this section modify our

exiting requirements for beneficiaries to

obtain nonavailability statements

(NASs). The requirement for

beneficiaries to obtain an NAS for

selected outpatient procedures is

eliminated. Beneficiaries who choose to

obtain outpatient care, including

ambulatory surgery, from civilian

sources remain subject to current

TRICARE/CHAMPUS cost sharing rules,

but the requirement that the beneficiary

obtain an NAS prior to TRICARE/

CHAMPUS sharing in the civilian

health care costs has been removed.

The requirement for beneficiaries

enrolled in TRICARE Prime to obtain an

NAS for inpatient care is also

eliminated. TRICARE was designed so

that the military treatment facility is the

first source of specialty care, with

TRICARE Prime enrollees having access

priority before non-enrolled

beneficiaries. In general, TRICARE

Prime enrollees obtain care from

civilian network providers only when

the military treatment facility cannot

provide the care because it does not

have the capability, or because the

enrollee cannot be seen within time

frames required by TRICARE Prime

access standards. Since the Health Care

Finder must authorize all nonemergency specialty care obtained from

civilian sources, the NAS requirement

for this category of beneficiary is

redundant.

Lastly, the revisions would eliminate

the requirement that a non-enrolled

beneficiary must obtain an NAS for

inpatient hospital maternity care before

TRICARE/CHAMPUS shares in any

costs for related outpatient maternity

care. Some diagnostic tests, procedures,

or consultations from civilian sources

may be required during a course of

maternity care and this allows

TRICARE/CHAMPUS to share in the

costs of the civilian care without

requiring the beneficiary to obtain all

maternity related care in a civilian

setting.

4. Revisions to the Uniform HMO

Benefit. We are contemplating minor

changes in the copayment structure of

the Uniform HMO Benefit, which is

used in TRICARE Prime. The proposed

rule includes two revisions, which

would eliminate copayments for

preventive services and for ancillary

services. Current provisions include

copayments for ancillary services unless

they are provided as part of an office

visit. This has resulted in multiple

copayments in cases where beneficiaries

are sent to multiple sites for diagnostic

testing pursuant to a visit, which we

regard as unfair.

Suggestions for additional minor

changes to the Uniform HMO benefit

will be considered. We will need to

maintain compliance with the statutory

requirements of overall budget

neutrality and for reduced beneficiary

out-of-pocket costs.

5. Other provisions. The proposed

rule also includes new provisions

regarding two issues. The first is the

inapplicability of the TRICARE Prime

annual catastrophic cap to out-of-pocket

costs incurred under the TRICARE

Prime point-of-service option. This is at

section 199.18(f)(2). Also, a restatement

of current policy, at section 199.17(a)(7),

records DoD interpretation of two

statutory provisions preempting state

laws in connection with TRICARE

contracts.

C. Regulatory Procedures

Executive Order 12866 requires

certain regulatory assessments for any

‘‘significant regulatory action,’’ defined

as one which would result in an annual

effort on the economy of $100 million

or more, or have other substantial

impacts.

The Regulatory Flexibility Act (RFA)

requires that each Federal agency

prepare, and make available for public

comment, a regulatory flexibility

analysis when the agency issues a

regulation which would have a

significant impact on a substantial

number of small entities.

This is not a significant regulatory

action under the provisions of Executive

Order 12866, and it would not have a

significant impact on a substantial

number of small entities.

This proposed rule will impose no

additional information collection

requirements on the public under the

Paperwork Reduction Act of 1980 (44

USC 3501–3511).

This is a proposed rule. Public

comments are invited. All comments

will be considered. A discussion of the

major issues raised by public comments

will be included with issuance of the

final rule, anticipated approximately 60
16512 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

days after the end of the comment

period.

List of Subjects in 32 CFR Part 199

Claims, Handicapped, Health

insurance, and Military personnel.

Accordingly, 32 CFR Part 199 is

proposed to be amended as follows:

PART 199—[AMENDED]

1. The authority citation for part 199

continues to read as follows:

Authority: 5 U.S.C. 301; 10 U.S.C. Chapter

55.

2. Section 199.2(b) is proposed to be

amended by revising the definition of

‘‘nonavailability statement’’ to read as

follows:

§ 199.2 Definitions.

* * * * *

(b) * * *

Nonavailability statement. A

certification by a commander (or a

designee) of a Uniformed Services

medical treatment facility, recorded on

DEERS, generally for the reason that the

needed medical care being requested by

a non-TRICARE Prime enrolled

beneficiary cannot be provided at the

facility concerned because the necessary

resources are not available in the time

frame needed.

* * * * *

3. Section 199.4 is proposed to be

amended by removing paragraphs

(a)(9)(i)(C) and (a)(9)(v)(B) and the note

following paragraph (a)((9)(vi), by

redesignating paragraph (a)(9)(i)(D) as

paragraph (a)(9)(i)(C) and paragraph

(a)(9)(v)(A) as paragraph (a)(9)(v), and

by revising paragraphs (a)(9)

introductory text, (a)(9)(i)(B), and

(a)(9)(ii) and by adding new paragraph

(a)(10)(vi)(E) to read as follows:

§ 199.4 Basic program benefits.

* * * * *

(a) * * *

(9) Nonavailability statements within

a 40-mile catchment area. In some

geographic locations, it is necessary for

CHAMPUS beneficiaries not enrolled in

TRICARE Prime to determine whether

the required inpatient medical care can

be provided through a Uniformed

Services facility. If the required care

cannot be provided, the hospital

commander, or designee, will issue a

Nonavailability Statement (DD form

1251). Except for emergencies, a

Nonavailability Statement should be

issued before medical care is obtained

from a civilian source. Failure to secure

such a statement may waive the

beneficiary’s rights to benefits under

CHAMPUS.

(i) * * *

(B) For CHAMPUS beneficiaries who

are not enrolled in TRICARE Prime, an

NAS is required for services in

connection with nonemergency

inpatient hospital care if such services

are available at a facility of the

Uniformed Services located within a 40-

mile radius of the residence of the

beneficiary, except that a NAS is not

required for services otherwise available

at a facility of the Uniformed Services

located within a 40-mile radius of the

beneficiary’s residence when another

insurance plan or program provides the

beneficiary primary coverage for the

services. This requirement for an NAS

does not apply to beneficiaries enrolled

in TRICARE Prime, even when those

beneficiaries use the point-of-service

option under section 199.17(n)(3).

* * * * *

(ii) Beneficiary responsibility. A

CHAMPUS beneficiary who is not

enrolled in TRICARE Prime is

responsible for securing information

whether or not he or she resides in a

geographic area that requires obtaining

a Nonavailability Statement.

Information concerning current rules

and regulations may be obtained from

the Offices of the Army, Navy, and Air

Force Surgeons General; or a

representative of the TRICARE managed

care support contractor’s staff, or the

Director, OCHAMPUS.

* * * * *

(10) * * *

(vi) * * *

(E) The beneficiary is enrolled in

TRICARE Prime.

3. Section 199.17 is proposed to be

amended by adding paragraph (a)(7) and

revising paragraphs (d)(1) and (o)(3) to

read as follows:

§ 199.17 TRICARE program.

(a) * * *

(7) Preemption of State laws. Pursuant

to 10 U.S.C. 1103 and the fourth proviso

of section 8025 of the Department of

Defense Appropriations Act, 1994 (Pub.

L. 103–139), any state or local law

relating to a health insurance, prepaid

health plans, or other health care

delivery, administration, and financing

methods is preempted and does not

apply in connection with TRICARE

regional contracts. Any such law, or

regulation pursuant to such law, is

without any force or effect, and State or

local governments have no legal

authority to enforce them in relation to

the TRICARE regional contracts.

(However, the Department of Defense

may, by contract, establish legal

obligations on the part of the TRICARE

contractors to conform with

requirements similar or identical to

requirements of State or local laws or

regulations.)

* * * * *

(d) * * *

(1) Military treatment facility (MTF)

care. (i) In general. All participants in

Prime are eligible to receive care in

military treatment facilities. Participants

in Prime will be given priority for such

care over other beneficiaries. Among the

following beneficiary groups, access

priority for care in military treatment

facilities where TRICARE is

implemented as follows: Active duty

service members; active duty service

members’ dependents who are enrolled

in TRICARE Prime; Retirees, their

dependents and survivors who are

enrolled in TRICARE Prime; Active duty

service member’s dependents who are

not enrolled in TRICARE Prime; and

Retirees, their dependents and survivors

who are not enrolled in TRICARE

Prime. For purposes of this paragraph

(d)(1), survivors of members who died

while on active duty are considered as

among dependents of active duty

service members.

(ii) Special provisions. Enrollment in

Prime does not affect access priority for

care in military treatment facilities for

several miscellaneous beneficiary

groups and special circumstances.

These include Secretarial designees,

NATO and other foreign military

personnel and dependents authorized

care through international agreements,

civilian employees under workers’

compensation programs or under safety

programs, members on the Temporary

Disability Retired List (for statutorily

required periodic medical

examinations), members of the reserve

components not on active duty (for

covered medical services), active duty

dependents unable to enroll in Prime

and temporarily away from place of

residence, and other beneficiary groups

as designated by the ASD(HA).

Additional exceptions to the normal

Prime enrollment priority access rules

may be granted for other categories of

individuals, eligible for treatment in the

MTF, whose access to care is necessary

to provide an adequate clinical case mix

to support graduate medical education

programs or readiness-related medical

skills sustainment activities, to the

extent approved by the Assistant

Secretary of Defense (Health Affairs).

* * * * *

(o) * * *

(3) Quarterly installment payments of

enrollment fee. The enrollment fee

required by § 199.18(c) may be paid in

quarterly installments, each equal to

one-fourth of the total amount. For any

beneficiary paying his or her enrollment
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16513

fee in quarterly installments, failure to

make a required installment payment on

a timely basis (including a grace period,

as determined by the Director,

OCHAMPUS) will result in termination

of the beneficiary’s enrollment in Prime

and disqualification from future

enrollment in Prime for a period of one

year.

* * * * *

4. Section 199.18 is proposed to be

amended by revising paragraphs (d)(2)(i)

and (f), and by adding paragraph (c)(3),

to read as follows:

§ 199.18 Uniform HMO benefit.

* * * * *

(c) * * *

(3) Waiver of enrollment fee for

certain beneficiaries. The Assistant

Secretary of Defense (Health Affairs)

may waive the enrollment fee

requirements of this section for

beneficiaries described in 10 U.S.C.

1086(d)(2) (i.e., those who are eligible

for Medicare on the basis of disability or

end stage renal disease and who

maintain enrollment in Part B of

Medicare).

(d) * * *

(2) * * *

(i) For most physician office visits and

other routine services, there is a per

visit fee for each of the following

groups: dependents of active duty

members in pay grades E–1 through E–

4; dependents of active duty members in

pay grades of E–5 and above; and

retirees and their dependents. This fee

applies to primary care and specialty

care visits, except as provided

elsewhere in this paragraph (d)(2) of this

section. It also applies family health

services, home health care visits, eye

examinations, and immunizations. It

does not apply to ancillary health

services or to preventive health services

described in paragraph (b)(2) of this

section.

* * * * *

(f) Limit on out-of-pocket under the

uniform HMO benefit. (1) Total out-ofpocket costs per family of dependents of

active duty members under the Uniform

HMO Benefit may not exceed $1,000

during the one-year enrollment period.

Total out-of-pocket costs per family of

retired members, dependents of retired

members and survivors under the

Uniform HMO Benefit may not exceed

$3,000 during the one-year enrollment

period. For this purpose, out-of-pocket

costs means all payments required of

beneficiaries under paragraphs (c), (d),

and (e) of this section. In any case in

which a family reaches this limit, all

remaining payments that would have

been required of the beneficiary under

paragraphs (c), (d), and (e) of this

section will be made by the program in

which the Uniform HMO Benefit is in

effect.

(2) The limits established by

paragraph (f)(1) of this section do not

apply to out-of-pocket costs incurred

pursuant to paragraphs (m)(1)(i) or

(m)(2)(i) of § 199.7 under the point-ofservice option of TRICARE Prime.

* * * * *

Dated: April 1, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 97–8611 Filed 4–4–97; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 100

[CGD07–97–010]

RIN 2115–AE46

Special Local Regulations; Fort Myers

Beach, FL

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes to

amend the permanent special local

regulations for the Fort Myers Beach

Offshore Grand Prix. This event,

previously scheduled to be held

annually on the first Saturday and

Sunday of June, will now be held

annually during the third Saturday and

Sunday of May, between 12 p.m. and 3

p.m. each day (Eastern Daylight Time).

These amended regulations are

necessary to provide for the safety of life

on navigable waters during the event.

DATES: Comments must be received on

or before May 1, 1997.

ADDRESSES: Comments may be mailed to

U.S. Coast Guard Group St. Petersburg,

600 8th Ave. SE., St. Petersburg, Florida

33701–5099, or may be delivered to the

Operations Department at the same

address between 8 a.m. and 4 p.m.,

Monday through Friday, except federal

holidays. The telephone number is (813)

824–7533. Comments will become a part

of the public docket and will be

available for copying and inspection at

the same address.

FOR FURTHER INFORMATION CONTACT:

LTJG T.J. Stuhlreyer, Coast Guard Group

St. Petersburg, FL at (813) 824–7533.

SUPPLEMENTARY INFORMATION:

Background and Purpose

The proposed regulations are needed

to provide for the safety of life during

the Fort Myers Beach Offshore Grand

Prix because of the permanent change in

the date of the event. The event was

previously held on the first Saturday

and Sunday in June, but will now be

held from 12 p.m. EDT to 3 p.m. EDT

each day on the third Saturday and

Sunday in May. There will be

approximately 170 participants and

spectator craft associated with the event,

which will be held off Fort Myers Beach

between Matanzas Pass and Big Carlos

Pass. The resulting congestion of

navigable channels on the third

weekend in May, vice the first weekend

in June, creates an extra or unusual

hazard in the navigable waters.

Request for Comments

The Coast Guard encourages

interested persons to participate in this

rulemaking by submitting written views,

data, or arguments. Persons submitting

comments should include their names,

addresses, identify the notice (CGD07–

97–010) and the specific section of this

proposal to which their comments

apply, and give reasons for each

comment. The Coast Guard will

consider all comments received during

the comment period. The regulations

may be changed in view of the

comments received. All comments

received before the expiration of the

comment period will be considered

before final action is taken on this

proposal.

No public hearing is planned, but one

may be held if the written requests for

a hearing are received, and it is

determined that the opportunity to

make oral presentations will add to the

rulemaking process. Please submit two

copies of all comments and attachments

in an unbound format, no larger than

81⁄2 by 11 inches, suitable for copying

and electronic filing. Persons wanting

acknowledgement of receipt should

include stamped, self-addressed post

cards or envelopes.

Regulatory Evaluation

This proposal is not a significant

regulatory action under Section 3(f) of

the Executive Order 12866 and does not

require an assessment of the potential

costs and benefits under Section 6(a)(3)

of that Order. It has been exempted from

review by the Office of Management and

Budget under that order. It is not

significant under the regulatory policies

and procedures of the Department of

Transportation (DOT) (44 FR 11040;

February 26, 1979).

The Coast Guard expects the

economic impact of this proposed rule

to be so minimal that a full Regulatory

Evaluation under paragraph 10e of the

regulatory policies and procedures of