67494 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

* * * * *

[FR Doc. 01–32105 Filed 12–28–01; 8:45 am]

BILLING CODE 6560–50–S

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Centers for Medicare & Medicaid

Services

42 CFR Parts 413, 419, and 489

[CMS–1159–F3]

RIN 0938–AL35

Medicare Program; Prospective

Payment System for Hospital

Outpatient Services; Delay in Effective

Date of Calendar Year 2002 Payment

Rates and the Pro Rata Reduction on

Transitional Pass-Through Payments

AGENCY: Centers for Medicare &

Medicaid Services (CMS), HHS.

ACTION: Final rule; delay of effective

date.

SUMMARY: This document delays the

effective date of the payment rates

announced for Medicare hospital

outpatient services paid under the

prospective payment system for

calendar year 2002. These rates were

announced in a November 30, 2001 final

rule (66 FR 59856). In addition, this

document delays the effective date of

the uniform reduction to be applied to

each of the transitional pass-through

payments for CY 2002. Certain

provisions of the November 30, 2001

rule, as discussed in the SUPPLEMENTARY

INFORMATION section, are not delayed.

DATES: The effective date of the

amendments to 42 CFR published at 66

FR 59856 (November 30, 2001) remains

January 1, 2002, except that the effective

date for § 419.32(b)(1)(iii) is delayed

indefinitely. Also, the effective date for

§ 419.62(d), added at 66 FR 55865,

published on November 2, 2001, is

delayed indefinitely. The effective date

of the payment rates announced for

Medicare hospital outpatient services

paid under the prospective payment

system for calendar year 2002,

published in the preamble and addenda

of the November 30, 2001 final rule, and

the uniform reduction to be applied to

each of the transitional pass-through

payments for CY 2002, published in the

preamble and addenda of the November

30, 2001 final rule, is delayed until no

later than April 1, 2002. These rates

were announced in a November 30,

2001 final rule (66 FR 59856). We will

publish a document in the Federal

Register announcing the new effective

date for the rates and for

§ 419.32(b)(1)(iii) and § 419.62(d).

FOR FURTHER INFORMATION CONTACT:

James L. Hart, (410) 786–0378.

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic

Access

Copies: To order copies of the Federal

Register containing this document, send

your request to: New Orders,

Superintendent of Documents, P.O. Box

371954, Pittsburgh, PA 15250–7954.

Specify the date of the issue requested

and enclose a check or money order

payable to the Superintendent of

Documents, or enclose your Visa or

Master Card number and expiration

date. Credit card orders can also be

placed by calling the order desk at (202)

512–1800 or by faxing to (202) 512–

2250. The cost for each copy is $9. As

an alternative, you can view and

photocopy the Federal Register

document at most libraries designated

as Federal Depository Libraries and at

many other public and academic

libraries throughout the country that

receive the Federal Register.

This Federal Register document is

also available from the Federal Register

online database through GPO Access, a

service of the U.S. Government Printing

Office. The Website address is: http://

www.access.gpo.gov/nara/index.html.

I. Background

On November 30, 2001, we published

a final rule announcing the final

ambulatory payment classification

(APC) groups, relative weights, and

payment rates under the hospital

outpatient prospective payment system

(OPPS) for calendar year 2002 (66 FR

59856). As discussed in detail in that

document, in setting the APC relative

weights, we incorporated 75 percent of

the estimated costs for devices eligible

for transitional pass-through payments

in 2002 into the costs of the APC groups

associated with the use of the devices

(66 FR 59906).

After the publication of the November

30 final rule, we discovered that the

final rule reflects several inadvertent

technical errors in which we incorrectly

associated specific devices approved for

transitional pass-through payments with

particular procedures. The effects of the

errors we have identified are of a

magnitude significant enough to affect

not only the estimate of total

transitional pass-through payments and

the uniform reduction percentage to be

applied to transitional pass-through

payments in 2002, but also the payment

rates for all APCs. Using rates that

reflect these errors would result in

inappropriate, uneven effects on

payments to hospitals. Thus, we believe

it would be inappropriate to proceed to

make the payment rates published on

November 30 effective without further

changes.

In order to thoroughly assess the

accuracy of the data files containing

these errors and to assure that they do

not contain further errors that might

also have significant implications, an

intensive review of the data will be

necessary. Because of the time needed

for this review, we cannot complete this

review and recalculate the rates before

the previously published effective date

of January 1, 2002. We will, therefore,

continue to pay for services covered

under the OPPS after January 1 and

until no later than April 1, 2002 under

the rates in effect on December 31, 2001.

We will also continue until no later than

April 1, 2002 to make transitional passthrough payments for drugs and devices

without applying the uniform reduction

announced on November 30, 2001.

Once our review has been completed

and the rates corrected, we will publish

a final rule with revised rates and a

revised calculation of the uniform

reduction in transitional pass-through

payments. We will announce the

effective date of these changes in that

rule.

II. List of OPPS Provisions That Are Not

Delayed

This document does not delay the

following provisions:

• Medicare, Medicaid, and SCHIP

Benefits Improvement and Protection

Act of 2000 coinsurance limit.

• Limitation of coinsurance amount

to inpatient hospital deductible amount.

• Changes in services covered within

the scope of OPPS.

• Categories of hospitals subject to,

and excluded from, the OPPS.

• Criteria for new technology APCs.

• Provider-based issues.

• Change to the definition of ‘‘singleuse devices’’ for transitional passthrough payments.

III. Waiver of Notice of Proposed

Rulemaking and the 30-Day Delay in

the Effective Date

We ordinarily publish a notice of

proposed rulemaking in the Federal

Register and invite public comment on

the proposed rule. The notice of

proposed rulemaking includes a

reference to the legal authority under

which the rule is proposed, and the

terms and substances of the proposed

rule or a description of the subjects and

issues involved. This procedure can be

waived, however, if an agency finds

good cause that a notice-and-comment

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67495

procedure is impracticable,

unnecessary, or contrary to the public

interest and incorporates a statement of

the finding and its reasons in the rule

issued.

We normally provide a delay of 30

days in the effective date of a final rule.

However, if adherence to this procedure

would be impracticable, unnecessary, or

contrary to the public interest, we may

waive the delay in the effective date. We

find that a 30-day delay in the effective

date of this regulation would be both

impracticable and contrary to the public

interest. In addition, although this is an

ongoing final rule proceeding, we

nevertheless have good cause to waive

notice and comment. As we have

discussed above, the rates that are

scheduled to go into effect on January 1,

2002 reflect inadvertent technical errors

that have major consequences. We,

therefore, do not believe it is

appropriate to implement the new rates

on January 1, 2002. To proceed with

making payments on the basis of

significantly incorrect rates would be

imprudent and contrary to the public

interest. These errors were discovered

within 30 days of the January 1, 2002

effective date. Therefore, there is an

urgent need to proceed with a delay in

the effective date of the 2002 rates, and

there is not sufficient time to provide

notice of proposed rulemaking and a 30-

day notice of the delay.

(Catalog of Federal Domestic Assistance

Program No. 93.773, Medicare—Hospital

Insurance; and Program No. 93.774,

Medicare—Supplementary Medical

Insurance Program)

Dated: December 18, 2001.

Thomas A. Scully,

Administrator, Centers for Medicare &

Medicaid Services.

Approved: December 21, 2001.

Tommy G. Thompson,

Secretary.

[FR Doc. 01–32091 Filed 12–27–01; 8:55 am]

BILLING CODE 4120–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 223 and 224

[Docket No.010607150–1264–02;

I.D.091200F]

RIN 0648–AN64

Sea Turtle Conservation; Restrictions

Applicable to Fishing and Scientific

Research Activities

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS is amending the sea

turtle handling and resuscitation

regulation. Recent scientific and

technical information indicates that the

current procedures need to be updated.

This measure is necessary to improve

the handling of sea turtles that are

incidentally captured during scientific

research or fishing activities.

DATES: This rule is effective December

31, 2001.

ADDRESSES:

FOR FURTHER INFORMATION CONTACT:

Therese A. Conant (301) 713–1401.

SUPPLEMENTARY INFORMATION: The taking

of sea turtles is governed by regulations

implementing the Endangered Species

Act (ESA) at 50 CFR parts 222 and 223

(see 64 FR 14051, March 23, 1999, final

rule consolidating and reorganizing ESA

regulations). Generally, the taking of sea

turtles is prohibited. However, the

incidental take of turtles during shrimp

and summer flounder fishing in areas of

the Atlantic Ocean and in the Gulf of

Mexico is excepted from the taking

prohibition pursuant to sea turtle

conservation regulations at 50 CFR

223.206, which include a requirement to

have a NMFS-approved turtle excluder

device (TED) installed in each net rigged

for fishing. Other exceptions to the

taking prohibition include incidental

take that is authorized for ESA scientific

research permits, incidental take

permits, and section 7 incidental take

statements. All take excepted from the

prohibitions requires safe handling and

resuscitation of incidentally caught sea

turtles as specified at 50 CFR 223.206

(d)(1).

Sea turtles are air breathers and may

drown under conditions of forced

submergence. To minimize the impact

of forced submergence, NMFS

developed protocols to handle comatose

turtles (FR 43 32801, July 28, 1978) and

subsequently updated the protocols (57

FR 57354, December 4, 1992). New

scientific and technical information has

been collected since the last update. For

example, the practice of stepping on the

plastron to revive the turtle may

actually do more harm than good.

Plastral pumping may cause the airway

to block, thus prohibiting air from

entering the lungs. Pumping the

plastron while a turtle is on its back also

causes the viscera to compress the lungs

which are located dorsally, thereby

hindering lung ventilation. Recent

physiological studies on the effects of

trawl capture on small sea turtles show

that high stress levels are developed

during short-duration forced

submergences and that the turtles may

require from 3.5 up to 24 hours to

recover from the stress effects.

Resuscitation techniques have been

refined over the years as biologists have

developed effective ways to test for

reflexes in order to determine the status

of the turtle.

NMFS published a proposed rule (66

FR 32787, June 18, 2001) requesting

comment on the following proposed

changes: Eliminate stepping on the

plastron as a method for resuscitation;

provide a more defined criteria to

determine dead versus comatose turtles;

increase the minimum elevation of the

hindquarters; add carapace movement

and a reflex test to the resuscitation

methods; and add several minor

changes to clarify the guidance for

keeping a turtle moist. No comments

were received. The proposed changes

are adopted as final.

Classification

The AA has determined that this final

rule is consistent with the ESA and with

other applicable law.

This action has been determined to be

not significant for purposes of Executive

Order 12866.

The AA prepared an environmental

impact statement (EIS) for the 1978

listing determination, establishing the

handling and resuscitation requirements

and prepared an environmental

assessment (EA) for the 1992 updated of

the requirements. The proposed rule

was determined to be a Categorical

Exclusion under the National

Environmental Policy Act since the

changes did not constitute a new action

and individually or cumulatively have a

significant impact on the quality of the

human environment.

A memorandum was prepared for the

Chief Counsel for Regulation of the

Department of Commerce who certified

to the Chief Counsel for Advocacy of the

Small Business Administration stating

that the proposed rule would not have

significant economic impact on a

substantial number of small entities.

None of the changes will result in

additional economic effects, since

NMFS already requires fishermen and

scientific researchers to safely handle

and attempt resuscitation on sea turtles

as necessary. The changes are limited to

protocols for monitoring the turtle and

make minor changes to the treatment

that would require no additional

material beyond what is already

generally available onboard a vessel (e.g.

elevating the sea turtles’ hindquarters

can be done with a tackle box or

bumper). No comments were received

regarding this certification. Thus, the