34694 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 

12This requirement is specific to arming 

procedures. Such written acknowledgement should 

not be construed to limit civil and criminal liability 

to conduct arising from ‘‘the use of weapons.’’ PSC 

personnel could be held criminally liable for any 

conduct that would constitute a federal offense (see 

MEJA, 18 USC 3261(a)). 

13Available at http://www.acq.osd.mil/log/PS/p_

vault.html. 

(F) Written acknowledgment by the 

PSC and individual PSC personnel that: 

(1) Potential civil and criminal 

liability exists under U.S. and local law 

or host nation Status of Forces 

Agreements for the use of weapons.12

(2) Proof of authorization to be armed 

must be carried by each PSC personnel. 

(3) PSC personnel may possess only 

U.S.G.-issued and/or -approved 

weapons and ammunition for which 

they have been qualified according to 

paragraph (a)(1)(iii)(E) of this section. 

(4) PSC personnel were briefed and 

understand limitations on the use of 

force. 

(5) Authorization to possess weapons 

and ammunition may be revoked for 

non-compliance with established rules 

for the use of force. 

(6) PSC personnel are prohibited from 

consuming alcoholic beverages or being 

under the influence of alcohol while 

armed. 

(iv) Registration and identification in 

the Synchronized Predeployment and 

Operational Tracker (or its successor 

database) of armored vehicles, 

helicopters, and other vehicles operated 

by PSC personnel. 

(v) Reporting alleged criminal activity 

or other incidents involving PSCs or 

PSC personnel by another company or 

any other person. All incidents 

involving the following shall be 

reported and documented: 

(A) A weapon is discharged by an 

individual performing private security 

functions; 

(B) An individual performing private 

security functions is killed or injured in 

the performance of their duties; 

(C) A person other than an individual 

performing private security functions is 

killed or injured as a result of conduct 

by PSC personnel; 

(D) Property is destroyed as a result of 

conduct by a PSC or PSC personnel; 

(E) An individual performing private 

security functions has come under 

attack including in cases where a 

weapon is discharged against an 

individual performing private security 

functions or personnel performing such 

functions believe a weapon was so 

discharged; or 

(F) Active, non-lethal countermeasures (other than the discharge of a 

weapon) are employed by PSC 

personnel in response to a perceived 

immediate threat in an incident that 

could significantly affect U.S. objectives 

with regard to the military mission or 

international relations. 

(vi) The independent review and, if 

practicable, investigation of incidents 

reported pursuant to paragraphs 

(a)(1)(v)(A) through (a)(1)(v)(F) of this 

section and incidents of alleged 

misconduct by PSC personnel. 

(vii) Identification of ultimate 

criminal jurisdiction and investigative 

responsibilities, where conduct of 

U.S.G.-funded PSCs or PSC personnel 

are in question, in accordance with 

applicable laws to include a recognition 

of investigative jurisdiction and 

coordination for joint investigations 

(i.e., other U.S.G. agencies, host nation, 

or third country agencies), where the 

conduct of PSCs and PSC personnel is 

in question. 

(viii) A mechanism by which a 

commander of a combatant command 

may request an action by which PSC 

personnel who are non-compliant with 

contract requirements are removed from 

the designated operational area. 

(ix) Interagency coordination of 

administrative penalties or removal, as 

appropriate, of non-DoD PSC personnel 

who fail to comply with the terms and 

conditions of their contract, as is 

applicable to this part. 

(x) Implementation of the training 

requirements contained below in 

paragraph (a)(2)(ii) of this section. 

(2) Specifically cover: 

(i) Matters relating to authorized 

equipment, force protection, security, 

health, safety, and relations and 

interaction with locals in accordance 

with DoD Instruction 3020.41, 

‘‘Contractor Personnel Authorized to 

Accompany the U.S. Armed Forces.’’ 

(ii) Predeployment training 

requirements addressing, at a minimum, 

the identification of resources and 

assistance available to PSC personnel as 

well as country information and cultural 

training, and guidance on working with 

host country nationals and military 

personnel. 

(iii) Rules for the use of force and 

graduated force procedures. 

(iv) Requirements and procedures for 

direction, control and the maintenance 

of communications with regard to the 

movement and coordination of PSCs 

and PSC personnel, including 

specifying interoperability 

requirements. These include 

coordinating with the Chief of Mission, 

as necessary, private security operations 

outside secure bases and U.S. 

diplomatic properties to include 

movement control procedures for all 

contractors, including PSC personnel. 

(b) Availability of Guidance and 

Procedures. The geographic Combatant 

Commander shall ensure the guidance 

and procedures prescribed in paragraph 

(a) of this section are readily available 

and accessible by PSCs and their 

personnel (e.g., on a Web page and/or 

through contract terms), consistent with 

security considerations and 

requirements. 

(c) Subordinate Guidance and 

Procedures. The Subordinate 

Commander, in consultation with the 

Chief of Mission, will issue guidance 

and procedures implementing the 

standing combatant command 

publications specified in paragraph (a) 

of this section, consistent with the 

situation and operating environment. 

(d) Consultation and Coordination. 

The Chief of Mission and the geographic 

Combatant Commander/Subordinate 

Commander shall make every effort to 

consult and coordinate responses to 

common threats and common concerns 

related to oversight of the conduct of 

U.S.G.-funded PSC and their personnel. 

The Memorandum of Agreement 

between the Department of Defense and 

Department of State on U.S.G. Private 

Security Contractors 13 shall provide the 

framework for the development of 

guidance and procedures without regard 

to the specific locations identified 

therein. 

Dated: July 14, 2009. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. E9–17059 Filed 7–16–09; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2007–HA–0127; RIN 0720–AB18] 

TRICARE: Civilian Health and Medical 

Program of the Uniformed Services 

(CHAMPUS) Changes Included in the 

John Warner National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2007; Authorization of 

Forensic Examinations 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

section 701 of the John Warner National 

Defense Authorization Act for FY 2007, 

Public Law 109–364. Section 701 

amends Title 10 of the United States 

Code (U.S.C.), Chapter 55, Section 

1079(a) by authorizing coverage for 


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Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 34695 

forensic examinations following a 

sexual assault or domestic violence for 

eligible beneficiaries. This authorizes 

forensic examinations provided in 

civilian health care facilities (e.g., 

civilian rape crisis facilities) following 

sexual assault or domestic violence, 

which is consistent with the services 

that are authorized in Military Medical 

Treatment Facilities for all beneficiaries 

who are victims of sexual assault or 

domestic violence. 

DATES: Effective Dates: This rule is 

effective August 17, 2009. 

Applicability date: This amendment 

applies to services provided on or after 

October 17, 2006. 

FOR FURTHER INFORMATION CONTACT: Joy 

Saly, Office of Medical Benefits and 

Reimbursement Branch, TRICARE 

Management Activity, telephone (303) 

676–3742. Questions regarding payment 

of specific claims should be addressed 

to the appropriate TRICARE contractor. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Final Rule Provisions 

This final rule implements section 

701 of the John Warner National 

Defense Authorization Act for Fiscal 

Year 2007, which establishes coverage 

of contracted medical care with respect 

to forensic examinations following a 

sexual assault or domestic violence. 

TRICARE pays for and will continue to 

pay for all emergency room services 

delivered to a victim. 

Prior to section 701, forensic 

examinations were not covered for 

beneficiaries in civilian health care 

facilities through TRICARE medical 

plan contracts because TRICARE, under 

10 U.S.C. 1079(a)(13), may cost share 

only medically or psychologically 

necessary services or supplies. Forensic 

examinations are conducted primarily 

for preservation of evidence for use in 

any future criminal investigation and/or 

prosecution. However, there is a dual 

purpose for the examination process. 

One purpose is to address the needs of 

the justice system, which include: 

Obtaining a history of the assault; 

documenting examination findings; 

properly collecting, handling, and 

preserving evidence; interpreting and 

analyzing findings (post examination), 

and subsequently, presenting findings; 

and providing factual and expert 

opinion related to the examination and 

evidence collection. The other purpose 

is to address the medical needs of the 

individual disclosing the sexual assault 

or domestic violence, which include: 

Evaluating and treating injuries; 

conducting prompt examinations; 

providing support, crisis intervention, 

and advocacy; providing prophylaxis 

against sexually transmitted diseases; 

assessing female patients for pregnancy 

risk and discussing treatment options, 

including reproductive health services; 

and providing follow-up care for 

medical and emotional needs. 

Forensic examinations are paid for 

Active Duty members by using 

supplemental health care funds, which, 

under 10 U.S.C. 1074(c)(1), does not 

have the same requirement for medical 

or psychological necessity. All 

beneficiaries are covered if they are 

examined in a military treatment 

facility. The forensic examination 

became an issue when services were 

provided in a civilian health care 

facility. Although most States have laws 

that designate payment sources to cover 

the costs of forensic examinations for 

sexual assault victims (some States even 

prohibit billing victims), some 

beneficiaries who were victims of a 

sexual assault received a bill for the 

forensic examination. Many States have 

mechanisms in place that require 

civilian health care facilities to bill a 

State agency directly. Certain other 

States, to some degree, have 

mechanisms to minimize the possibility 

of invoicing the beneficiary. This final 

rule puts into place a mechanism that 

allows civilian health care facilities to 

invoice TRICARE for reimbursement of 

forensic examinations. 

Forensic Examination (Early Evidence 

Kits) 

A forensic examination uses an early 

evidence kit to collect and preserve the 

evidence. Early evidence kits (also 

known as rape kits) typically include: 

Forms for documentation of what is 

observed; tubes for blood samples; a 

urine sample container (for detecting 

drugs that may have been used to 

facilitate a sexual assault); cotton swabs 

for biological evidence collection; sterile 

water; sterile saline; glass slides; 

unwaxed dental floss; a wooden stick 

for fingernail scrapings; envelopes or 

boxes for individual evidence samples; 

labels for each item and paper bags for 

clothing collection; and a large sheet of 

paper for patient to undress over. The 

victim’s clothing is collected for any 

external evidence and new clothes are 

provided. Forensic examinations can 

take up to 4 hours. 

We believe that a large portion of the 

costs for forensic examinations are 

probably already being paid by 

TRICARE, as most services associated 

with the examination are covered under 

any circumstance; and if a claim from a 

health care facility is submitted with the 

appropriate procedure code, then the 

claim would then be paid. What was not 

being cost-shared were the examinations 

to gather information for the justice 

system. In a civilian facility, the victim’s 

private insurance should not be billed 

for the cost of the examination. Pursuant 

to the Federal Victims of Crime Act 

(VOCA), the primary payer is a Federal 

or federally funded program (such as 

Medicare, Medicaid, TRICARE or the 

Department of Veterans Affairs). A 

reimbursement request from a provider, 

under the VOCA, should only be 

submitted for a victim who is not 

covered by a Federal or federally funded 

program. This final rule amends the 

regulation to ensure that forensic 

examinations following sexual assault 

or domestic violence are specifically 

listed as a covered benefit under 

TRICARE. This rule applies to services 

provided on or after October 17, 2006, 

the effective date of the NDAA for FY 

2007. 

II. Review of Public Comments 

We provided a 60-day comment 

period on the proposed rule which was 

published in the Federal Register on 

July 7, 2008 (73 FR 38348–38350). No 

comments were received. 

III. Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ 

Executive Order 12866 requires a 

comprehensive regulatory impact 

analysis be performed on any 

economically significant regulatory 

action, defined as one that would result 

in an annual effect of $100 million or 

more on the national economy or which 

would have other substantial impacts. 

This final rule is not an economically 

significant regulatory action, and it has 

been certified that it will not have a 

significant impact on the national 

economy. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (RFA) (5 U.S.C. 601) 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (RFA) (5 U.S.C. 601), 

requires each Federal agency to prepare 

a regulatory flexibility analysis when 

the agency issues a regulation which 

would have a significant impact on a 

substantial number of small entities. 

This final rule is not an economically 

significant regulatory action, and it has 

been certified that it will not have a 

significant impact on a substantial 

number of small entities. Therefore, this 

final rule is not subject to the 

requirements of the RFA. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

This rule does not contain a 

‘‘collection of information’’ 

requirement, and will not impose 


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34696 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Rules and Regulations 

additional information collection 

requirements on the public under Public 

Law 96–511, ‘‘Paperwork Reduction 

Act’’ (44 U.S.C. Chapter 35). 

Public Law 104–4, Section 202, 

‘‘Unfunded Mandates Reform Act’’ 

Section 202 of Public Law 104–4, 

‘‘Unfunded Mandates Reform Act,’’ 

requires an analysis be performed to 

determine whether any federal mandate 

may result in the expenditure by State, 

local and tribal governments, in the 

aggregate, or by the private sector of 

$100 million in any one year. It has 

been certified that this final rule does 

not contain a federal mandate that may 

result in the expenditure by State, local 

and tribal governments, in aggregate, or 

by the private sector, of $100 million or 

more in any one year. Therefore, this 

final rule is not subject to this 

requirement. 

Executive Order 13132, ‘‘Federalism’’ 

Executive Order 13132, ‘‘Federalism,’’ 

requires an impact analysis be 

performed to determine whether the 

rule has federalism implications that 

would 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. It has been 

certified that this final rule does not 

have federalism implications, as set 

forth in Executive Order 13132. 

List of Subjects in 32 CFR Part 199 

Claims, Dental health, Health care, 

Health insurance, Individuals with 

disabilities, Military personnel. 

Accordingly, 32 CFR part 199 is 

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 199.4 is amended by adding 

paragraph (e)(27) to read as follows: 

§ 199.4 Basic program benefit. 

* * * * * 

(e) * * * 

(27) TRICARE will cost share forensic 

examinations following a sexual assault 

or domestic violence. The forensic 

examination includes a history of the 

event and a complete physical and 

collection of forensic evidence, and 

medical and psychological follow-up 

care. The examination for sexual assault 

also includes, but is not limited to, a test 

kit to retrieve forensic evidence, testing 

for pregnancy, testing for sexually 

transmitted disease and HIV, and 

medical services and supplies for 

prevention of sexually transmitted 

diseases, HIV, pregnancy, and 

counseling services. 

* * * * * 

Dated: July 14, 2009. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. E9–17060 Filed 7–16–09; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 242 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 100 

[FWS–R7–SM–2008–0101; 70101–1335– 

0064L6] 

Subsistence Management Regulations 

for Public Lands in Alaska; Makhnati 

Island Area 

AGENCIES: Forest Service, Agriculture; 

Fish and Wildlife Service, Interior. 

ACTION: Final rule; correction. 

SUMMARY: This document corrects 36 

CFR 242.3 and 50 CFR 100.3 of the 

subsistence management regulations for 

public lands in Alaska, subpart A, 

Makhnati Island Area, which were 

published in the Federal Register of 

August 24, 2006. That rule, which 

became effective September 25, 2006, 

inadvertently omitted 190 acres of the 

Makhnati Island Area in the regulatory 

text. 

DATES: This correction is effective July 

17, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Chair, Federal Subsistence Board, c/o 

U.S. Fish and Wildlife Service, 

Attention: Peter J. Probasco, Office of 

Subsistence Management; (907) 786– 

3888. For questions specific to National 

Forest System lands, contact Calvin H. 

Casipit, Subsistence Program Leader, 

USDA—Forest Service, Alaska Region, 

(907) 586–7918. 

SUPPLEMENTARY INFORMATION: On August 

24, 2006, the Secretaries of Agriculture 

and the Interior published a final rule 

(71 FR 49997) that revised jurisdiction 

of the Federal Subsistence Management 

Program by adding submerged lands 

and waters in the area of Makhnati 

Island, near Sitka, Alaska. That rule, 

which became effective September 25, 

2006, inadvertently omitted 190 acres of 

the Makhnati Island Area which was 

withdrawn for use by the Federal 

Government in Executive Order 8216 

(July 25, 1939). Executive Order 8216 

was not rescinded until after statehood, 

so the submerged land did not transfer 

to the State at statehood. Since this 

submerged land is not included in any 

other withdrawal, reservation, or 

administrative set aside, the marine 

submerged lands, including any filled 

lands owned by the United States, are 

under the administration of the Bureau 

of Land Management and are included 

within the jurisdiction of the Federal 

Subsistence Management Program. 

Because this rule relates to public 

lands managed by an agency or agencies 

in both the Departments of Agriculture 

and the Interior, identical text is 

incorporated into 36 CFR part 242 and 

50 CFR part 100. 

Administrative Procedure Act 

We find good cause to waive notice 

and comment on this correction, 

pursuant to 5 U.S.C. 533(b)(3)(B), and 

the 30-day delay in effective date, 

pursuant to 5 U.S.C. 553(d). Notice and 

comment are unnecessary because this 

correction is a minor, technical change 

in the description of the area already 

under Federal jurisdiction. The 

substance of the regulations remains 

unchanged. Therefore, this correction is 

being published as a final rule and is 

effective upon publication. 

List of Subjects 

36 CFR Part 242 

Administrative practice and 

procedure, Alaska, Fish, National 

forests, Public lands, Reporting and 

recordkeeping requirements, Wildlife. 

50 CFR Part 100 

Administrative practice and 

procedure, Alaska, Fish, National 

forests, Public lands, Reporting and 

recordkeeping requirements, Wildlife. 

■ Accordingly, we amend title 36, part 

242, and title 50, part 100, of the Code 

of Federal Regulations as follows: 

PART ____—SUBSISTENCE 

MANAGEMENT REGULATIONS FOR 

PUBLIC LANDS IN ALASKA 

■ 1. The authority citation for both 36 

CFR part 242 and 50 CFR part 100 

continues to read as follows: 

Authority: 16 U.S.C. 3, 472, 551, 668dd, 

3101–3126; 18 U.S.C. 3551–3586; 43 U.S.C. 

1733. 

■ 2. Amend §__.3 by revising paragraph 

(b)(5) as follows: 


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