### 24409 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations

significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA.

This technical amendment will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), nor will this technical amendment have any ‘‘tribal implications’’ as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000).

This technical amendment does not require any special considerations, OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). Nor will this technical amendment have any affect on energy supply, distribution or use as described in Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001).

This technical amendment does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note). The technical amendment also does not involve special consideration of environmental justice related issues under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (55 FR 7629, February 16, 1994). V. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 721

Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements. Dated: April 12, 2012. Ward Penberthy, Acting Director, Chemical Control Division, Office of Pollution Prevention and Toxics.

Therefore, 40 CFR part 721 is corrected by making the following technical amendment:

**PART 721—[AMENDED]**

■ 1. The authority citation for part 721 continues to read as follows:

Authority: 15 U.S.C. 2604, 2607, and 2625(c).

■ 2. In § 721.9719, revise paragraph (a)(2)(ii) to read as follows:

**§ 721.9719 Tris carbamoyl triazine (generic).** 

(a) * * * (2) * * * (ii) Hazard communication program. Requirements as specified in § 721.72(a), (b), (c), (d), (e) (concentration set at 1.0 percent), (f), (g)(1)(ii), (g)(1)(iv), (g)(2)(ii), (g)(2)(iv), and (g)(5).

* * * * * [FR Doc. 2012–9844 Filed 4–23–12; 8:45 am]

**BILLING CODE 6560–50–P**

**DEPARTMENT OF HEALTH AND HUMAN SERVICES** 

**Centers for Medicare & Medicaid Services** 

**42 CFR Parts 410, 411, 416, 419, 489, and 495** 

**[CMS–1525–CN2]**

**RIN 0938–AQ26**

**Medicare and Medicaid Programs: Hospital Outpatient Prospective**  **Payment; Ambulatory Surgical Center Payment; Hospital Value-Based** **Purchasing Program; Physician Self Referral; and Patient Notification**  **Requirements in Provider Agreements; Corrections** 

**AGENCY :**  Centers for Medicare & Medicaid Services (CMS), HHS.

**ACTION :**  Final rule; Correction.

**SUMMARY :**  This document corrects technical errors that appeared in the final rule with comment period published in the Federal Register on November 30, 2011, entitled ‘‘Medicare and Medicaid Programs: Hospital Outpatient Prospective Payment; Ambulatory Surgical Center Payment; Hospital Value-Based Purchasing Program; Physician Self-Referral; and Patient Notification Requirements in Provider Agreements’’ and in the correction notice published in the Federal Register on January 4, 2012, entitled ‘‘Medicare and Medicaid Programs: Hospital Outpatient Prospective Payment; Ambulatory Surgical Center Payment; Hospital Value-Based Purchasing Program; Physician Self-Referral; and Patient Notification Requirements in Provider Agreements; Corrections.’’

**DATES :**  Effective date: This document is effective on April 24, 2012.

Applicability Date: The corrections noted in this document and posted on the CMS Web site are applicable to payments on or after January 1, 2012.

**FOR FURTHER INFORMATION CONTACT :**  Erick Chuang, (410) 786–1816.

**SUPPLEMENTARY INFORMATION :**  I. Regulatory Overview

In FR Doc. 2011–26812 of November 30, 2011 (76 FR 74122) and FR Doc. 2011–33751 of January 4, 2012 (77 FR 217), there were a number of technical errors that are identified and corrected in the ‘‘Correction of Errors’’ section below.

We issued the calendar year (CY) 2012 hospital outpatient prospective payment system (OPPS)/ambulatory surgical center (ASC) final rule with comment period on November 1, 2011 (hereinafter referred to as the CY 2012 OPPS/ASC final rule with comment period). The CY 2012 OPPS/ASC final rule with comment period appeared in the November 30, 2011 Federal Register

.

We issued a correction notice for the CY 2012 OPPS/ASC final rule with comment period on December 30, 2011 (hereinafter referred to as the CY 2012 OPPS/ASC correction notice). The CY 2012 OPPS/ASC correction notice appeared in the January 4, 2012 Federal Register

.

The provisions in this correction notice are effective as if they had been included in the CY 2012 OPPS/ASC final rule with comment period and in the CY 2012 OPPS/ASC correction notice. Accordingly, the corrections are effective January 1, 2012. II. Background

In the CY 2012 OPPS/ASC final rule with comment period, we finalized a continuation of our policy to exclude line items that were eligible for payment in the claims year but did not meet the Medicare requirements for payment (76 FR 74141). Line items not meeting requirements for Medicare payment were rejected or denied during claims processing. It is our longstanding policy not to use line items that were rejected or denied for payment for modeling


### 24410 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations

costs under the OPPS. In reviewing the claims data used to establish the ambulatory payment classification (APC) median costs for the CY 2012 OPPS/ASC final rule with comment period, we discovered that the trim of unpaid lines was not applied correctly. Therefore, we published a correction notice in the Federal Register on January 4, 2012, to correct our programming logic in the OPPS data process to apply the line item trim correctly. We also recalculated the median costs for each separately paid service using the claims that resulted from the correctly applied trim. In this correction notice, we are correcting the revenue code-to-cost center crosswalk in our programming logic and the packaging status of two drug codes. III. Summary of Errors

A. Corrections to the Revenue Code-toCost Center Crosswalk

In the CY 2012 OPPS/ASC final rule with comment period, we finalized a continuation of our policy to apply the hospital-specific cost-to-charge ratios (CCRs) to the hospital’s charges at the most detailed level possible, based on a revenue code-to-cost center crosswalk that contains a hierarchy of CCRs used to estimate costs from charges for each revenue code (76 FR 74134). This allowed us to estimate line-item costs for every claim in the dataset used to model the OPPS. In reviewing the program logic used to establish the APC median costs for the CY 2012 OPPS/ ASC final rule with comment period, wediscovered that this revenue code-tocost center crosswalk contained incorrect mappings due to misalignments for several revenue codes, specifically revenue codes 790 (Extra-Corp Shock Wave Therapy), 800 (Inpatient Dialysis), 801 (Inpatient Hemodialysis), 802 (Inpatient peritoneal dialysis), 803 (inpatient dialysis CAPD), 804 (Inpatient dialysis CCPD), and 809 (Other inp dialysis). In this correction notice, we are correcting the revenue code-to-cost center crosswalk in our program logic to accurately reflect the crosswalk available online at http:// www.cms.gov/HospitalOutpatientPPS/

03

_ crosswalk.asp#TopOfPage. To obtain accurate median costs, we applied the available CCRs to the appropriate revenue code charges to estimate cost and recalculated the APC median costs for each separately paid service. We are making no other changes to the programming described in the CY 2012 OPPS/ASC final rule with comment period or the subsequent CY 2012 OPPS/ASC correction notice, which resolved a technical error in our cost modeling where the line item trim for eligible unpaid lines was not applied correctly. Those changes to the claims dataset used to model the OPPS APC median costs are reflected in this correction notice, since the combination of the line item trim and revenue code crosswalk in the data process have an interactive effect on the calculation of the APC payments.

The application of the correct revenue code-to-cost center crosswalk for the specific revenue codes resulted in changes to the APC median costs used to establish the relative payment weights, therefore affecting the CY 2012 OPPS payment rates, copayments, outlier threshold, and regulatory impact analysis. Due to changes in the APC median costs, we recalculated the budget neutral weight scaler discussed in section II.A.4. of the CY 2012 OPPS/ ASC final rule with comment period (76 FR 74189) and in the CY 2012 OPPS/ ASC correction notice when we addressed the line item trim issue. Using the updated unscaled relative weights, the CY 2012 budget neutrality weight scaler is changed from 1.3585 to 1.3597. We note that the weight scaler was initially corrected in the CY 2012 OPPS/ASC correction notice (77 FR 218) from 1.3588 to 1.3585. We also note that changes associated with the revised APC median costs and the corrected budget neutrality weight scaler have no additional effect on the budget neutrality, in particular, those applied to the CY 2012 conversion factor. Using the corrected revenue code-to-cost center crosswalk in our programs, the CY 2012 OPPS fixed-dollar outlier threshold remains at $2,025, as published in the CY 2012 OPPS/ASC correction notice.

We are also correcting the CY 2012 estimated impacts. The CY 2012 OPPS/ ASC correction notice made changes to accurately apply the line item trim in our ratesetting process. As previously stated in this correction notice we areapplying a corrected revenue code-tocost center crosswalk. The combined corrections to the line item trim and revenue code-to-cost center crosswalk affects the calculation of APC median costs and the CY 2012 OPPS payment rates. Therefore, this correction notice makes minor changes to Table 59— Estimated Impact of the Final CY 2012 for the Hospital OPPS.

To view the revised payment rates that result from the changed median costs as well as the correction to the packaging status of HCPCS codes J1642 and J1644, see the Addenda and supporting files that are posted on the CMS Web site at: http://www.cms.gov/ HospitalOutpatientPPS/HORD/. All revised Addenda for this correction notice will be contained in a zipped folder on the Web page associated with this correction notice. The corrected CY 2012 table of updated offset amounts is posted on the OPPS Web site under ‘‘Annual Policy Files’’ which is found on the left side of the page. The corrected file of median costs is found under supporting documentation for CMS–1525–FC.

ASC payment rates are based on the OPPS relative payment weights for the majority of services that are provided at ASCs. Therefore, the correct application of the line item based trim and thecorrect application of the revenue codeto-cost center crosswalk for the revenue codes specified above have an effect on the CY 2012 ASC relative payment weights and ASC payment rates. Due to the changes to the OPPS payment weights, we had to recalculate the budget neutral ASC weight scalar of 0.9466 discussed in section XIII.H.2.a of the CY 2012 OPPS/ASC final rule with comment period (76 FR 74447 to 74448). In the CY 2012 OPPS/ASC correction notice, we corrected the application of the line item based trim; using the updated scaled OPPS relative weights, the CY 2012 budget neutrality ASC weight scalar changed from 0.9466 to 0.9477 (77 FR 218). In this correction notice, we corrected the application of the revenue code-to-cost center crosswalk for the revenue codes specified above; using the updated scaled OPPS relative weights, the CY 2012 budget neutrality ASC weight scalar changed from 0.9477 to 0.9481. The changes associated with the revised OPPS relative weights and the corrected budget neutrality ASC weight scalar have no effect on the CY 2012 ASC conversion factor. To view the revised ASC payment rates that result from the revised ASC relative payment weights, see the ASC Addenda that are posted on the CMS Web site at: http://www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/ASCPayment/ASCRegulations-and-Notices.html. Select ‘‘CMS–1525–FC’’ from the list of regulations. All revised ASC addenda for this correction notice are contained in the zipped folder entitled ‘‘Addendum AA, BB, DD1, DD2, EE— revised ASC payment rates resulting from upcoming Federal Register Correction Notice publication’’ at the bottom of the page for CMS–1525–FC. B. Correction to Packaging Status of Drug Codes

In the CY 2012 OPPS/ASC final rule with comment period, we finalized a continuation of our policy to make a single packaging determination for a


### 24411 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations

drug, rather than an individual healthcare common procedure coding system (HCPCS) code, when a drug has multiple HCPCS codes describing different dosages (76 FR 74303). For the CY 2012 OPPS/ASC final rule with comment period, there was an error in the calculation to determine the packaging status of drugs with multiple HCPCS codes that describe differentdosages. This error resulted in the perday cost for HCPCS J1642 (Injection, heparin sodium (heparin lock flush), per 10 units) and HCPCS J1644 (Injection, heparin sodium, per 1000 units) to be in excess of the $75 packaging threshold and both codes were consequently assigned to status indicator ‘‘K’’ (separately paid). After application of the correct calculation to determine the per-day cost for drugs that have multiple HCPCS codes describing different dosages, the per day cost for HCPCS J1642 and J1644 was below the $75 packaging threshold. Therefore, we are changing the status indicator assignment for HCPCS codes J1642 and J1644 from ‘‘K’’ to ‘‘N’’ (packaged) for CY 2012 to reflect this correction. In addition, because drugs that are determined to be packaged in the OPPS are also packaged under the ASC payment system, we are changing the ASC payment indicator assignment for HCPCS codes J1642 and J1644 from ‘‘K2’’ to ‘‘N1’’ (packaged) for CY 2012 to reflect the correction detailed above. III. Waiver of Proposed Rulemaking and the 30-Day 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 rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the agency finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefor in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

The policies and payment methodologies finalized in the CY 2012 OPPS/ASC final rule with comment period have previously been subjected to notice and comment procedures. This correction notice merely provides technical corrections to the CY 2012 OPPS/ASC final rule with comment period and the subsequent CY 2012 OPPS/ASC correction notice. The CY 2012 OPPS/ASC final rule with comment period was promulgated through notice and comment rulemaking. This correction notice does not make substantive changes to the policies or payment methodologies that were finalized in the final rule with comment period. For example, to conform the document to the final policies of the CY 2012 OPPS/ASC final rule with comment period, this notice makes changes to revise inaccurate tabular information and update payment numbers used in the example for calculation of an adjusted Medicare Payment. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice. In addition, we believe it is important for the public to have the correct information as soon as possible and find no reason to delay the dissemination of it. For the reasons stated above, we find that both notice and comment and the 30-day delay in effective date for this correction notice 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 correction notice.

IV. Correction of Errors

A. Corrections to CY 2012 OPPS/ASC Correction Notice

In FR Doc. 2011–33751 of January 4, 2012 (77 FR 217), make the following corrections: 1. On page 218, in the first column, in the second paragraph, in line 12, revise ‘‘1.3585’’ to read ‘‘1.3597’’.

2. On page 218, in the third column, in line 11, revise ‘‘0.9477’’ to read ‘‘0.9481’’.

3. On page 219, in the third column, in the first instruction, revise ‘‘1.3585’’ to read ‘‘1.3597’’.

4. On page 222, in the first column— A. In instruction 5.A, revise ‘‘$309.46’’ to read ‘‘$309.74’’.

B. In instruction 5.B, revise ‘‘$303.27’’ to read ‘‘$303.54’’.

C. In instruction 6.A, revise ‘‘$244.02’’ to read ‘‘$244.24’’ and revise ‘‘$309.46’’ to read ‘‘$309.74’’.

5. On page 222, in the second column—

A. In instruction 6.B, revise ‘‘$239.14’’ to read ‘‘$239.35’’ and revise ‘‘$303.27’’ to read ‘‘$303.54’’.

B. In instruction 6.C, revise ‘‘$123.78’’ to read ‘‘$123.90’’ and revise ‘‘$309.46’’ to read ‘‘$309.74’’.

C. In instruction 6.D, revise ‘‘$121.31’’ to read ‘‘$121.42’’ and revise ‘‘$303.27’’ to read ‘‘$303.54’’.

D. In instruction 6.E, revise ‘‘$367.80’’ to read ‘‘$368.13’’.

E. In instruction 6.F, revise ‘‘$123.78’’ to read ‘‘$123.90’’ and revise ‘‘$244.02’’ to read ‘‘$244.24’’.

F. In instruction 6.G, revise ‘‘$360.44’’ to read ‘‘$360.76’’, ‘‘$239.14’’ to read ‘‘$239.35’’, and ‘‘$121.31’’ to read ‘‘$121.42’’.

G. In instruction 7.A, revise ‘‘$61.90’’ to read ‘‘$61.95’’.

6. On page 222, in the third column— A. In instruction 7.B, revise ‘‘$309.46’’ to read ‘‘$309.74’’.

B. In instruction 9.A, revise ‘‘0.9477’’ to read ‘‘0.9481’’.

C. In instruction 9.B, revise ‘‘0.9477’’ to read ‘‘0.9481’’.

7. On pages 223 through 226, revise Table 59—Estimated Impact of the Final CY 2012 Changes for the Hospital Outpatient Prospective Payment System to read as follows:

**BILLING CODE 4120–01–P**


### 24412 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations


### 24413 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations


### 24414 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations


### 24415 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations

**BILLING CODE 4120–01–C**

8. On page 226, in the first column, in instruction 11, revise ‘‘0.9477’’ to read ‘‘0.9481’’.

B. Corrections to the Final Rule with Comment Period

In FR Doc. 2011–26812 of November 30, 2011 (76 FR 74122), make the following corrections:

1. On page 74303, in third column, end of the first paragraph, remove the last two sentences in the paragraph that begins at the bottom of the second column.

2. On page 74303, in third column, in the last paragraph, delete the following portion of the first sentence: ‘‘With the exception of the changed status indicators for HCPCS J1642 and J1644,’’ and capitalize the first letter of the new

sentence.

3. On page 74304, in the third column of the table, in the data cells associated with J1642 and J1644, revise ‘‘K’’ to read
‘‘N’’.

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program) (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program)

Dated: April 18, 2012. Jennifer Cannistra, Executive Secretary to the Department.

[FR Doc. 2012–9837 Filed 4–23–12; 8:45 am]

**BILLING CODE 4120–01–P DEPARTMENT OF TRANSPORTATION** 

**Federal Railroad Administration**

**49 CFR Parts 209, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224,**  **225, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241,**  **242, and 244**

**[Docket No. FRA–2004–17529; Notice No. 8]** 

**RIN 2130–AB94**

**Inflation Adjustment of the Aggravated Maximum Civil Monetary Penalty for a**  **Violation of a Federal Railroad Safety Law or Federal Railroad Administration**  **Safety Regulation or Order**

**AGENCY :**  Federal Railroad Administration (FRA), Department of Transportation (DOT).

**ACTION :**  Final rule.

**SUMMARY :**  To comply with the Federal Civil Penalties Inflation Adjustment Act of 1990, FRA is adjusting the aggravated maximum penalty that it will apply when assessing a civil penalty for a violation of a railroad safety statute, regulation, or order under its authority. In particular, FRA is increasing the aggravated maximum civil penalty ( i.e., the maximum civil penalty per violation where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury or has caused death or injury) from $100,000 to $105,000. The current minimum civil penalty per violation of $650 and the current ordinary maximum civil penalty per violation of $25,000 remain the same.

**DATES :**  This final rule is effective June 25, 2012.

**FOR FURTHER INFORMATION CONTACT :**  Veronica Chittim, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590 (telephone 202–493–0273), veronica.chittim@dot.gov.

**SUPPLEMENTARY INFORMATION :**  The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Act) requires that an agency adjust by regulation each maximum civil monetary penalty (CMP), or range of minimum and maximum CMPs, within that agency’s jurisdiction by October 23, 1996, and adjust those penalty amounts once every four years thereafter, to reflect inflation. Public Law 101–410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement Act of 1996, Public Law 104–134, 110 Stat. 1321–373, April 26, 1996. Congress recognized the important role that CMPs play in deterring violations of Federal laws, regulations, and orders and realized that inflation has diminished the impact of these penalties. In the Inflation Act, Congress found a way to counter the effect that inflation has had on the CMPs by having the agencies charged with enforcement responsibility administratively adjust the CMPs.

FRA is authorized as the delegate of the Secretary of Transportation to enforce the Federal railroad safety statutes, regulations, and orders, including the civil penalty provisions codified primarily at 49 U.S.C. chapter 213. See 49 U.S.C. 103 and 49 CFR 1.49; 49 U.S.C. chapter 201–213. FRA currently has safety regulations in 31 parts of the Code of Federal Regulations that contain provisions referencing the agency’s authority to impose civil penalties if a person violates any requirement in the pertinent portion of a statute or the Code of Federal Regulations. In this final rule, FRA is amending each of those separate regulatory provisions and the corresponding footnotes in each Schedule of Civil Penalties appended to those regulations, in order to raise the aggravated maximum CMP to $105,000. Where applicable, FRA is amending the corresponding appendices to those regulatory provisions which outline FRA enforcement policy. See 49 CFR part 209, app. A; 49 CFR part 228, app. A. FRA is also amending several sections in the civil penalty schedules to reflect FRA’s existing practice, which is to increase the guideline penaltyamount from the statutory, inflationadjusted minimum of $650 (or for some line items, $500) to $1,000 for an ordinary violation, and $2,000 for a willful violation, to allow room for downward negotiation during the