| Page Range | 61109-61307 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 61109 - Thanksgiving Day, 2018 | |
| 83 FR 61157 - Federal Financial Participation in State Assistance Expenditures; Federal Matching Shares for Medicaid, the Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2019 Through September 30, 2020 | |
| 83 FR 61116 - Indian Electric Power Utilities | |
| 83 FR 61164 - HEARTH Act Approval of Quinault Indian Nation's Business and Residential Leasing Regulations | |
| 83 FR 61149 - Proposed Collection; Comment Request | |
| 83 FR 61168 - Certain Earpiece Devices and Components Thereof: Notice of a Commission Determination Not To Review an Initial Determination Granting a Motion for Leave To Amend the Complaint and Notice of Investigation | |
| 83 FR 61151 - Proposed Collection; Comment Request | |
| 83 FR 61150 - Proposed Collection; Comment Request | |
| 83 FR 61171 - Information Collection: NRC Form 531, “Request for Taxpayer Identification Number” | |
| 83 FR 61169 - Information Collection: Operators' Licenses | |
| 83 FR 61170 - Information Collection: Domestic Licensing of Source Material | |
| 83 FR 61168 - Notice of the December 5, 2018, Meeting of the National Park System Advisory Board | |
| 83 FR 61149 - Charter Renewal of Department of Defense Federal Advisory Committees | |
| 83 FR 61172 - Exelon Generation Company, LLC; Calvert Cliffs Nuclear Power Plant, Units 1 and 2; Calvert Cliffs Independent Spent Fuel Storage Installation; James A. FitzPatrick Nuclear Power Plant; Nine Mile Point Nuclear Station, Units 1 and 2 | |
| 83 FR 61121 - Waiver of Certain Consumer Information Requirements for Foreign Institutions of Higher Education | |
| 83 FR 61146 - EKO Development, Ltd. and EKO USA, LLC, Provisional Acceptance of a Settlement Agreement and Order | |
| 83 FR 61152 - Power Holding LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 61153 - Combined Notice of Filings #1 | |
| 83 FR 61155 - Combined Notice of Filings | |
| 83 FR 61152 - Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications: Badger Mountain Hydro, LLC | |
| 83 FR 61155 - Notice of Availability of the Environmental Assessment for the Proposed Northern Natural Gas Company Northern Lights 2019 Expansion and Rochester Projects | |
| 83 FR 61152 - Notice of Availability of Draft Environmental Assessment: Black Bear Hydro Partners, LLC | |
| 83 FR 61154 - Notice of Application: Transcontinental Gas Pipe Line Company, LLC | |
| 83 FR 61145 - Proposed Information Collection; Comment Request; External Needs Assessment for NOAA Education Products and Programs | |
| 83 FR 61144 - Submission for OMB Review; Comment Request | |
| 83 FR 61160 - Habitat Conservation Plan and Draft Environmental Assessment, North Allegheny Wind Facility, Incidental Take Permit Application for Indiana Bat, Blair and Cambria Counties, Pennsylvania | |
| 83 FR 61163 - Endangered Species; Receipt of Recovery Permit Application | |
| 83 FR 61134 - Procedural Revisions to the Filing of Open Video System Certification Applications | |
| 83 FR 61183 - Agency Information Collection Activity Under OMB Review: Department of Veterans Affairs Acquisition Regulation; Architect-Engineer Fee Proposal; Contractor Production Report; Daily Log and Contract Progress Report | |
| 83 FR 61183 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Generic Clearance for Meaningful Access Information Collections | |
| 83 FR 61182 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple Departmental Offices Information Collection Requests | |
| 83 FR 61125 - Cost of Living Adjustment to Royalty Rates for Webcaster Statutory License | |
| 83 FR 61126 - Cost of Living Adjustment to Satellite Carrier Compulsory License Royalty Rates | |
| 83 FR 61126 - Cost of Living Adjustment to Public Broadcasters Compulsory License Royalty Rate | |
| 83 FR 61144 - Agenda and Notice of Public Meeting of the Vermont Advisory Committee | |
| 83 FR 61175 - Submission for Review: Notice of Change in Student's Status, RI 25-15 | |
| 83 FR 61175 - Submission for Review: Reinstatement of a Previously Approved Information Collection With Revision, Office of Personnel Management (OPM) Standard Form (SF) 15, Application for 10-Point Veteran Preference, OMB No. 3206-0001 | |
| 83 FR 61174 - Information Collection: RI 20-126-Certification of Qualifying District of Columbia Service Under Section 1905 of Public Law 111-84 | |
| 83 FR 61176 - Information Collection: Application for Death Benefits Under the Federal Employees Retirement System (SF 3104); and Documentation & Elections in Support of Application for Death Benefits When Deceased Was an Employee at the Time of Death (SF 3104B) | |
| 83 FR 61177 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Certificate of Incorporation and Bylaws | |
| 83 FR 61127 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Exclusion of cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z) | |
| 83 FR 61167 - Notice of Intent for the Potential Amendment to the Approved Resource Management Plan for the Miles City Field Office, Montana, and To Prepare an Associated Supplemental Environmental Impact Statement | |
| 83 FR 61165 - Notice of Intent for the Potential Amendment to the Approved Resource Management Plan for the Buffalo Field Office, Wyoming, and To Prepare an Associated Supplemental Environmental Impact Statement | |
| 83 FR 61111 - Rules of Practice and Procedure | |
| 83 FR 61186 - Affordable Housing Program Amendments | |
| 83 FR 61288 - General Provisions; Revised List of Migratory Birds | |
| 83 FR 61161 - Draft List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply | |
| 83 FR 61156 - Submission for OMB Review | |
| 83 FR 61250 - Per Diem Paid to States for Care of Eligible Veterans in State Homes | |
| 83 FR 61137 - Prosthetic and Rehabilitative Items and Services |
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Children and Families Administration
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Copyright Royalty Board
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation (FDIC) is amending its rules of practice and procedure to remove duplicative, descriptive regulatory language related to civil money penalty (CMP) amounts that restates existing statutory language regarding such CMPs; codify Congress's recent change to CMP inflation-adjustments in the FDIC's regulations; and direct readers to an annually published notice in the
This rule is effective on January 15, 2019.
Graham N. Rehrig, Senior Attorney, Legal Division, (202) 898-3829,
The policy objective of the Rule is to simplify the presentation of maximum CMP amounts within 12 CFR part 308 to support ease of reference and public understanding. The Rule will amend the presentation of maximum CMP limits to help ensure consistency with similar statutes of other federal financial regulators.
The FDIC assesses CMPs under section 8(i) of the Federal Deposit Insurance Act (FDIA) (12 U.S.C. 1818) and a variety of other statutes.
Since 1990, Congress has required federal agencies with authority to impose CMPs to periodically adjust the maximum CMP amounts these agencies are authorized to impose.
The 2015 Adjustment Act directs federal agencies to follow guidance issued by the OMB by December 15 of each year when calculating new maximum penalty amounts.
The FDIC is amending its rules of practice and procedure to remove from
Currently, 12 CFR 308.116(b) and 308.132(d) contain the maximum CMP amounts that may be assessed for violations of various statutes, along with lengthy descriptions of these statutes. Rather than providing any interpretation of these statutes or providing guidance regarding the assessment of CMPs for violations of these statutes, the descriptive language contained in sections 308.116(b) and 308.132(d) merely restates the enabling statutory language. The FDIC's current format for identifying inflation-adjusted CMP figures differs significantly from the formats published by other prudential regulators
A sample annual table containing the current maximum CMP amounts appears at the end of this section, for reference. Under the Rule, the FDIC will calculate and publish a similar chart with inflation-adjusted figures in the
The FDIC, however, will retain language in section 308.116(a), (c) and (d) concerning violations of the Change in Bank Control Act. These regulations, which the FDIC implemented in 1991, address requests for a hearing, mitigating factors, and the consequences of a respondent's failure to answer.
The FDIC is also keeping language concerning the late filing of Call Reports at current section 308.132(d)(1) and (d)(3). 12 U.S.C. 1817(a) provides the maximum CMP amounts for the late filing of Call Reports. In 1991, however, the FDIC issued regulations that further subdivided these amounts based upon the size of the institution and the lateness of the filing.
The FDIC is correcting four errors currently located at section 308.132(d)(1) and (d)(3) concerning the maximum amount that generally will be assessed for violations of 12 U.S.C. 1464(v) and 1817(a) regarding the late filing of Call Reports by certain small institutions. The current text contains the inadvertent overstatement of four fractions of an institution's total assets that are paired with correctly stated basis-point figures. These corrections will align the listed fractions of an institution's total assets with the listed basis-point calculations, and these corrections will be reflected in the annual
Lastly, the FDIC is revising cross-references found at 12 CFR 308.502(a)(6), 12 CFR 308.502(b)(4), 12 CFR 308.530, and 12 CFR 327.3(c) to reflect the revisions to 12 CFR 308.132(d).
Since the Rule will amend the presentation of maximum CMP levels in the
During preliminary discussions regarding the Rule, the FDIC considered possible alternatives to issuing the Rule. The primary alternative the FDIC considered was to maintain the current statutory language in the CFR and
The FDIC believes that these changes to Part 308 are ministerial and technical and that, therefore, notice-and-comment rulemaking is unnecessary. Nonetheless, in the interest of transparency, the FDIC invited comments on all aspects of the Rule in a Notice of Proposed Rulemaking, dated August 3, 2018.
Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994
The Rule will not impose any new or additional reporting, disclosures, or other requirements on insured depository institutions. Therefore, the Rule is not subject to the requirements of this statute.
The Regulatory Flexibility Act (RFA) generally requires that, in connection with a rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis describing the impact of the rulemaking on small entities.
The FDIC believes the amendments to 12 CFR parts 308 and 327 will have a negligible impact on small entities. For a detailed description of the Rule and its expected effects, please review Section III above. The revisions are intended to simplify the text of the CFR by removing unnecessary and redundant text in order to make it easier for readers to reference and understand the current maximum CMP amounts.
The OMB has determined that the Rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA).
The FDIC determined that the Rule will not affect family wellbeing within the meaning of section 654 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999.
The Rule does not create any new, or revise any existing, collections of information under section 3504(h) of the Paperwork Reduction Act of 1980.
Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use plain language in all proposed and final rules published after January 1, 2000.
Administrative practice and procedure, Bank deposit insurance, Banks, banking, Claims, Crime, Equal access to justice, Fraud, Investigations, Lawyers, Penalties.
Bank deposit insurance, Banks, banking, Savings associations.
For the reasons set forth in the preamble, the FDIC amends 12 CFR parts 308 and 327 to read as follows:
5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Pub. L. 104-134, sec. 31001(s), 110 Stat. 1321; Pub. L. 109-351, 120 Stat. 1966; Pub. L. 111-203, 124 Stat. 1376; Pub. L. 114-74, sec. 701, 129 Stat. 584.
(b)
(d)
(1)
(2)
(e)
(i)
(ii)
(iii)
(iv)
(2)
(3)
(ii)
(iii)
(4)
(a) * * *
(6) The amount of any penalty assessed under paragraph (a)(1) of this section will be adjusted for inflation in accordance with § 308.132(d).
(b) * * *
(4) The amount of any penalty assessed under paragraph (a)(1) of this section will be adjusted for inflation in accordance with § 308.132(d).
(d) Civil money penalties that are assessed under this subpart are subject to annual adjustments to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, sec. 701, 129 Stat. 584) (
12 U.S.C. 1441, 1813, 1815, 1817-19, 1821.
(c)
By order of the Board of Directors.
Bureau of Indian Affairs, Interior.
Final rule.
This rule revises regulations addressing electric power utilities of the Colorado River, Flathead, and San Carlos Indian irrigation projects to use plain language, update definitions, lengthen a regulatory deadline, and make other minor changes.
This rule is effective December 28, 2018.
David Fisher, Branch Chief Irrigation & Power, Division of Water & Power, Bureau of Indian Affairs, telephone (303) 231-5225,
Various statutes provide the Bureau of Indian Affairs (BIA) with authority to issue this regulation and for administering electric power utilities for the Colorado River, Flathead (Mission Valley Power), and San Carlos Indian irrigation projects. For example, see 5 U.S.C. 301; 25 U.S.C. 13; 25 U.S.C. 385c; 43 Stat. 475-76; 45 Stat. 210-13; 49 Stat. 1039-40; 49 Stat. 1822-23; 54 Stat. 422; 62 Stat. 269-73; 65 Stat. 254; 99 Stat. 319-20. Each of these power projects provides energy, transmission, and distribution of electrical services to customers in their respective service areas. BIA (or the contracting/compacting Indian Tribe) provides oversight and limited technical assistance for power projects and conducts operations and maintenance of the distribution systems.
The regulations addressing BIA's administration of the power utilities are at 25 CFR part 175, Indian Electric Power Utilities. This final rule updates the regulations for the first time since 1991.
The revisions being finalized today are intended to make the regulations more user-friendly through plain language. The final rule also updates definitions, lengthens the time by which BIA must issue a decision on an appeal from 30 days to 60 days (by referring to 25 CFR 2.19(a)), and requires publication of rate adjustments in the
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
This document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more;
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required.
Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consult with Indian Tribes and recognize their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 for substantial direct effects on federally recognized Indian Tribes and have consulted with those Tribes served by the electric power utilities subject to this rule. We hosted two in-person Tribal consultation sessions in the vicinity of Tribes served by the electric power utilities: One on April 14, 2016, in Pablo, Montana, and one on April 19, 2016, in Phoenix, Arizona. One Tribe submitted comments on the draft regulation, to which we have responded by letter because the comments are primarily unique to the local utility. We included an offer in the proposed rule for any Tribe that would like additional consultation opportunities on the proposed regulatory changes to contact BIA. No Tribe requested additional consultation opportunities on the rule.
The information collection requirements contained in 25 CFR part 175 are authorized by OMB Control Number 1076-0021, with an expiration date of June 30, 2019. A submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information, see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
Administrative practice and procedure, Electric power, Indians—lands, Reporting and recordkeeping requirements.
5 U.S.C. 301; 25 U.S.C. 13; 25 U.S.C. 385c; 43 Stat. 475-76; 45 Stat. 210-13; 49 Stat. 1039-40; 49 Stat. 1822-23; 54 Stat. 422; 62 Stat. 269-73; 65 Stat. 254; 99 Stat. 319-20.
The purpose of this part is to establish the regulations for administering BIA electric power utilities.
This part applies to you if we provide you service or if you request service from us.
We promote efficient administration, operation, maintenance, and construction of our utilities by following and enforcing:
(a) Applicable statutes, regulations, Executive Orders, Indian Affairs manuals, Operations Manuals;
(b) Applicable written policies, procedures, directives, safety codes; and
(c) Utility industry standards.
(a) We maintain an Operations Manual for each of our utilities. Each utility's Operations Manual is available at the utility.
(b) The Operations Manual sets forth the requirements for the administration, management, policies, and responsibilities of that utility and its customers.
(c) We update our Operations Manual for each utility to reflect changing requirements to administer, operate, or maintain that utility.
(d) When we determine it necessary to revise an Operations Manual, we will:
(1) Provide public notice of the proposed revision;
(2) State the effective date of the proposed revision;
(3) State how and when to submit your comments on our proposed revision;
(4) Provide 30 days from the date of the notice to submit your comments; and
(5) Consider your comments and provide notice of our final decision.
(a) If you need electrical service in an area where we provide service, you must contact our utility in that service area.
(b) To receive service, you must enter into an Agreement with that utility after it has determined that you have met its requirements.
At a minimum, you must provide the utility with the following information when you request service:
(a) Your full legal name or the legal name of the entity needing service;
(b) Your taxpayer identification number;
(c) Your billing address;
(d) Your service address; and
(e) Any additional information required by the utility.
We are collecting this information so we can:
(a) Provide you with service;
(b) Bill you for the service we provide; and
(c) Account for monies you pay us, including any deposits as outlined in the Operations Manual.
We are required to collect your taxpayer identification number under the authority of, and as prescribed in, the Debt Collection Improvement Act of 1996, Public Law 104-134 (110 Stat. 1321-364).
(a) You may appeal a decision in accordance with the procedures set out in 25 CFR part 2, unless otherwise prohibited by law.
(b) If the appeal involves the discontinuation of service, the utility is not required to resume the service during the appeal process unless the customer meets the utility's requirements.
(c) If you appeal your bill, you must pay your bill in accordance with this part to continue to receive service from us.
(1) If the appeal involves the amount of your bill, the bill will be considered paid under protest until the final decision has been rendered on appeal.
(2) If you appeal your bill but do not pay the bill in full, you may not continue to receive service from us. If the final decision rendered in the appeal requires payment of the bill, the bill will be handled as a delinquent account and the amount of the bill may be subject to interest, penalties, and administrative costs pursuant to 31 U.S.C. 3717 and 31 CFR 901.9.
(3) If the appeal involves an electric power rate, the rate will be applied and remain in effect subject to the final decision on the appeal.
(a) The revenue we collect from you and the other customers is authorized by 25 U.S.C. 385c (60 Stat. 895, as amended by 65 Stat. 254).
(b) The revenue we collect may be used to:
(1) Pay for operation and maintenance of the utility;
(2) Maintain Reserve Funds to:
(i) Make repairs and replacements to the utility;
(ii) Defray emergency expenses;
(iii) Ensure the continuous operation of the power system; and
(iv) Pay other allowable expenses and obligations to the extent required or permitted by law.
We review our rates and fees at least annually to:
(a) Determine if our financial requirements are being met to ensure the reliable operation of the utility serving you; and
(b) Determine if revenues are sufficient to meet the statutory requirements.
If, based on our annual review, we determine our service fees need to be adjusted:
(a) We will notify you at least 30 days prior to the effective date of the adjustment; and
(b) We will publish a schedule of the adjusted service fees in a local newspaper(s) and post them in the local utility office serving you.
Except for purchased power costs, if we determine electric power rates need to be adjusted, we will:
(a) Hold public meetings and notify you of their respective time, date, and location by newspaper notice and a notice posted in the utility office serving you;
(b) Provide you notice at least 15 days prior to the meeting;
(c) Provide you a description of the proposed rate adjustment;
(d) Provide you information on how, where, and when to submit comments on our proposed rate adjustment;
(e) Make a final determination on the proposed rate adjustment after all comments have been received, reviewed, and evaluated; and
(f) Publish the proposed rate adjustment and the final rate in the
These adjustments remain in effect until we conduct a review and determine adjustments are necessary.
The
(a) Visiting
(b) Writing to the GPO at Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954; or
(c) Calling the GPO at (202) 512-1800.
Changes to purchased power costs are not included in the procedure for adjusting electric power rates because unforeseen increases in the cost of purchased power are:
(a) Not under our control;
(b) Determined by current market rates; and
(c) Subject to market fluctuations that can occur at an undetermined time and frequency.
When our cost of purchased power changes:
(a) We determine the effect of the change;
(b) We adjust the purchased power component of your bill accordingly;
(c) We add the purchased power adjustment to the existing electric power rate and put it into effect immediately;
(d) The purchased power adjustment remains in effect until we determine future adjustments are necessary;
(e) We must publish in the local newspaper and post at our office a notice of the purchase power adjustment and the basis for the adjustment; and
(f) Our decision to make a purchased power adjustment must be final.
(a) We calculate your electric power bill based on the:
(1) Current rate schedule for your type service; and
(2) Applicable service fees for your type service.
(b) If you have a metered service we must:
(1) Read your meter monthly;
(2) Calculate your bill based on your metered energy consumption; and
(3) Issue your bill monthly, unless otherwise provided in a Special Agreement.
(c) If we are unable to calculate your metered energy consumption, we must make a reasonable estimate based on one of the following reasons:
(1) Your meter has failed;
(2) Your meter has been tampered with; or
(3) Our utility personnel are unable to read your meter.
(d) If you have an unmetered service, we calculate your bill in accordance with your Special Agreement.
The due date is provided on your bill.
You may pay your bill by any of the following methods:
(a) In person at our utility office;
(b) Mail your payment to the address stated on your bill; or
(c) As further provided by the electric utility that serves you.
(a) If you do not pay your bill prior to the close of business on the due date, your bill will be past due.
(b) If your bill is past due we may:
(1) Disconnect your service; and
(2) Not reconnect your service until your bill, including any applicable fees, is paid in full.
(c) Specific regulations regarding non-payment can be found in 25 CFR 143.5(c).
(a) If your service has been disconnected and you still have an outstanding balance, we will assess you interest, penalties, and administrative costs in accordance with 31 CFR 901.9.
(b) We must forward your delinquent balance to the United States Treasury if it is not paid within 180 days after the original due date in accordance with 31 CFR 901.1.
The utility may extend or upgrade its electric system to serve new or increased loads. Contact your electric power utility providing service in your area for further information on new or increased loads.
Contact your electric power utility providing service in your area for further information on rights-of-way.
The collection of information contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501
Office of Postsecondary Education, Department of Education.
Waiver.
The Secretary identifies specific provisions governing the student loan programs authorized by title IV of the Higher Education Act of 1965, as amended (HEA), that do not apply to foreign institutions.
November 28, 2018.
Ashley Higgins, U.S. Department of Education, 400 Maryland Avenue SW, Room 294-20, Washington, DC 20202. Telephone: (202) 453-6097. Email:
The Department of Education's (Department) regulations governing the eligibility of foreign institutions to participate in the title IV, HEA student loan programs provide that, “[a] foreign institution must comply with all requirements for eligible and participating institutions except when made inapplicable by the HEA or when the Secretary, through publication in the
• Any established criteria the school uses regarding the transfer of credit earned at another school; and
• A list of schools with which the school has established an articulation agreement.
• A statement that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject them to civil and criminal liabilities;
• A summary of the penalties for violation of Federal copyright laws; and
• The institution's policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution's information technology system.
• Names of associations, agencies, or governmental bodies that accredit, approve, or license the institution and its programs; and
• Procedures for obtaining or reviewing documents describing accreditation, approval, or licensing.
• Standards of conduct that clearly prohibit the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees on the institution's property or as part of any of the institution's activities;
• A description of the applicable legal sanctions under local, State, or Federal law for the unlawful possession or distribution of illicit drugs and alcohol;
• A description of the health risks associated with the use of illicit drugs and the abuse of alcohol;
• A description of available counseling, treatment, rehabilitation, or re-entry programs; and
• A clear statement that the institution will impose disciplinary sanctions for violation of the standards of conduct and a description of those sanctions.
In addition, each institution must make available, upon request, to the Department and to the public, the information distributed to students and employees and the results of a biennial review of the institution's program to—
• Determine the effectiveness of the program and implement needed changes;
• Determine the number of drug and alcohol-related violations and fatalities that occur on the institution's campus or as part of the institution's activities, and are reported to campus officials;
• Determine the number and type of sanctions that are imposed by the institution; and
• Ensure that sanctions are consistently enforced.
If the information is requested by a prospective student, it must be made available prior to the student's enrolling or entering into any financial obligation with the institution. The disaggregated rates have to be disclosed only if the number of students in each group is sufficient to yield statistically reliable information and not reveal personally identifiable information about an individual student.
• The most recent available data concerning employment statistics and graduation statistics;
• Any other information necessary to substantiate the truthfulness of the advertisements; and
• Relevant State licensing requirements of the State in which the institution is located for any job for which the course of instruction is designed to prepare students.
• Male.
• Female.
• Self-identified members of a major racial or ethnic group.
• Federal Pell Grant recipients.
If a college bookstore is operated by or affiliated with the institution, the institution must make available as soon as practicable the most accurate information available regarding—
• The institution's course schedule for the subsequent academic period;
• The information provided for students regarding the required and recommended textbooks and supplemental materials for each course or class; and
• The number of students enrolled in each course or class and the maximum student enrollment for each course or class.
• Make a good faith effort to distribute a mail voter registration form to each student enrolled in a degree or certificate program and physically in attendance at the institution;
• Make the voter registration form widely available to students; and
• Request the forms from the State 120 days prior to the deadline for registering to vote within the State.
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Copyright Royalty Board (CRB), Library of Congress.
Final rule; cost of living adjustment.
The Copyright Royalty Judges announce a cost of living adjustment (COLA) in the royalty rates that commercial and noncommercial noninteractive webcasters pay for eligible transmissions pursuant to the statutory licenses for the public performance of and for the making of ephemeral reproductions of sound recordings.
Anita Blaine, CRB Program Assistant, by telephone at (202) 707-7658 or by email at
Sections 112(e) and 114(f) of the Copyright Act, title 17 of the United States Code, create statutory licenses for certain digital performances of sound recordings and the making of ephemeral reproductions to facilitate transmission of those sound recordings. On May 2, 2016, the Copyright Royalty Judges (Judges) adopted final regulations governing the rates and terms of copyright royalty payments under those licenses for the license period 2016-2020 for performances of sound recordings via eligible transmissions by commercial and noncommercial noninteractive webcasters.
Pursuant to those regulations, at least 25 days before January 1 of each year from 2017 to 2020, the Judges shall publish in the
The adjustment in the royalty fee shall be based on a calculation of the percentage increase in the CPI-U from the CPI-U published in November 2015 (237.838), according to the formula (1 + (C
The 2019 rate for eligible transmission of sound recordings by commercial webcasters is a rate of $0.0023 per subscription performance and a rate of $0.0018 per nonsubscription performance.
Application of the increase to rates for noncommercial webcasters results in a 2019 rate of $0.0019 per performance for all digital audio transmissions in excess of 159,140 ATH in a month on a channel or station.
As provided in 37 CFR 380.10(d), the royalty fee for making ephemeral recordings under section 112 of the Copyright Act to facilitate digital transmission of sound recordings under section 114 of the Copyright Act is included in the section 114 royalty fee and comprises 5% of the total fee.
Copyright, Sound recordings.
In consideration of the foregoing, the Judges amend part 380 of title 37 of the Code of Federal Regulations as follows:
17 U.S.C. 112(e), 114(f), 804(b)(3).
(a)
(1)
(2)
Copyright Royalty Board, Library of Congress.
Final rule; cost of living adjustment.
The Copyright Royalty Judges announce a cost of living adjustment (COLA) to the royalty rate that noncommercial radio stations at certain colleges, universities, and other educational institutions that are not affiliated with National Public Radio must pay for the use in 2019 of published nondramatic musical compositions in the SESAC repertory pursuant to the statutory license under the Copyright Act for noncommercial broadcasting. Because the current rates did not become final until January 2018, the revised regulation includes the revised rate for 2018 that reflects the cost of living adjustment announced in 2017.
Anita Blaine, CRB Program Assistant, by telephone at (202) 707-7658 or by email at
Section 118 of the Copyright Act, title 17 of the United States Code, creates a statutory license for the use of published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting.
On January 19, 2018, the Copyright Royalty Judges (Judges) adopted final regulations governing the rates and terms of copyright royalty payments under section 118 of the Copyright Act for the license period 2018-2022.
The change in the cost of living as determined by the CPI-U during the period from the most recent index published prior to the previous notice,
Copyright, Music, Radio, Television, Rates.
In consideration of the foregoing, the Judges amend part 381 of title 37 of the Code of Federal Regulations as follows:
17 U.S.C. 118, 801(b)(1), and 803.
(c) * * *
(3) * * *
(i) 2018: $155 per station.
(ii) 2019: $159 per station.
Copyright Royalty Board (CRB), Library of Congress.
Final rule; cost of living adjustment.
The Copyright Royalty Judges announce a cost of living adjustment (COLA) of 2.5% in the royalty rates satellite carriers pay for a compulsory license under the Copyright Act. The COLA is based on the change in the Consumer Price Index from October 2017 to October 2018.
Anita Blaine, CRB Program Assistant, by telephone at (202) 707-7658 or by email at
The satellite carrier compulsory license establishes a statutory copyright licensing scheme for the distant retransmission of television programming by satellite carriers. 17 U.S.C. 119. Congress created the license in 1988 and has reauthorized the license for additional five-year periods, most recently with the passage of the STELA Reauthorization Act of 2014, Public Law 113-200.
On August 31, 2010, the Copyright Royalty Judges (Judges) adopted rates for the section 119 compulsory license for the 2010-2014 term.
The change in the cost of living as determined by the CPI-U during the period from the most recent index published before December 1, 2017, to the most recent index published before December 1, 2018, is 2.5%.
Copyright, Satellite, Television.
In consideration of the foregoing, the Judges amend part 386 of title 37 of the Code of Federal Regulations as follows:
17 U.S.C. 119(c), 801(b)(1).
(b) * * *
(1) * * *
(x) 2019: 29 cents per subscriber per month.
(2) * * *
(x) 2019: 59 cents per subscriber per month.
Environmental Protection Agency (EPA).
Final rule.
On May 1, 2018, the U.S. Environmental Protection Agency (EPA) published a proposed rule seeking comments in response to a petition requesting the revision of the EPA's regulatory definition of volatile organic compounds (VOC) to exempt
This final rule is effective on January 28, 2019.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2017-0175. All documents in the docket are listed on the
Dr. Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address:
Entities potentially affected by this final rule include, but are not necessarily limited to, the following: State and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFO-1336mzz-Z for use in polyurethane rigid insulating foams, refrigeration, and air conditioning. Potential entities that may be affected by this action include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that might be affected by this deregulatory action. This table lists the types of entities that the EPA is now aware of that could potentially be affected to some extent by this action. Other types of entities not listed in the table could also be affected to some extent. To determine whether your entity is directly or indirectly affected by this action, you should consult your state or local air pollution control and/or air quality management agencies.
Tropospheric O
The CAA requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC” and, hence, what compounds shall be treated as VOC for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) (from here forward referred to as the 1977 Recommended Policy) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005) (from here forward referred to as the 2005 Interim Guidance). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption from the regulatory definition of VOC. Compounds that are more reactive than ethane continue to be considered VOC for regulatory purposes and, therefore, are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 Recommended Policy.
The EPA has used three different metrics to compare the reactivity of a specific compound to that of ethane: (i) The rate constant for reaction with the hydroxyl radical (OH) (known as k
The k
The MIR, both by mole and by mass, is a more updated metric of photochemical reactivity derived from a computer-based photochemical model, and it has been used as a metric of reactivity since 1995. This metric considers the complete O
The EPA has considered the choice between MIRs with a molar or mass basis for the comparison to ethane in past rulemakings and guidance. In the 2005 Interim Guidance, the EPA stated:
[A] comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect ozone concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds.
When reviewing compounds that have been suggested for VOC-exempt status, EPA will continue to compare them to ethane using k
The 2005 Interim Guidance notes that the EPA will consider a compound to be negligibly reactive if it is equally as or less reactive than ethane based on either k
The molar comparison of MIR is more consistent with the original smog chamber experiments, which compared equal molar concentrations of individual VOCs, supporting the selection of ethane as the threshold, while the mass-based comparison of MIR is consistent with how MIR values and other reactivity metrics are applied
Given the two goals of the exemption policy articulated in the 2005 Interim Guidance, the EPA believes that ethane continues to be an appropriate threshold for defining negligible reactivity. And, to encourage the use of environmentally beneficial substitutions, the EPA believes that a comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect O
The 2005 Interim Guidance also noted that concerns have sometimes been raised about the potential impact of a VOC exemption on environmental endpoints other than O
DuPont Chemicals & Fluoroproducts (DuPont) submitted a petition to the EPA on February 14, 2014, requesting that
To support its petition, DuPont referenced several documents, including one peer-reviewed journal article on HFO-1336mzz-Z reaction rates (Baasandorj, M.
To address the potential for stratospheric O
On May 1, 2018, the EPA published a proposed rulemaking (83 FR 19026) seeking comments in response to the petition to revise the EPA's regulatory definition of VOC for exemption of HFO-1336mzz-Z. The EPA is taking final action to respond to the petition by exempting HFO-1336mzz-Z from the regulatory definition of VOC. This action is based on consideration of the compound's low contribution to tropospheric O
As noted in studies cited by the petitioner, HFO-1336mzz-Z has a MIR value of 0.04 g O
Table 2 presents three reactivity metrics for HFO-1336mzz-Z as they compare to ethane.
The reaction rate of HFO-1336mzz-Z with the OH radical (k
A molecule of HFO-1336mzz-Z is less reactive than a molecule of ethane in terms of complete O
The EPA's decision to exempt HFO-1336mzz-Z from the regulatory definition of VOC is based on our findings above. However, as noted in the 2005 Interim Guidance, the EPA reserves the right to exercise its judgment in certain cases where an exemption is likely to result in a significant increase in the use of a compound and a subsequent significantly increased risk to human health or the environment. In this case, the EPA does not find that exemption of HFO-1336mzz-Z would result in an increase of risk to human health or the environment, with regard to stratospheric O
HFO-1336mzz-Z is unlikely to contribute to the depletion of the stratospheric O
The SNAP program is the EPA's program to evaluate and regulate substitutes for end-uses historically using O
Based on screening assessments of the health and environmental risks of HFO-1336mzz-Z, the SNAP program anticipated that users will be able to use the compound without significantly greater health risks than presented by use of other available substitutes for the same uses (USEPA, 2014, 2016).
The EPA anticipates that HFO-1336mzz-Z will be used consistent with the recommendations specified in the material safety data sheet (SDS) (DuPont, 2011). According to the SDS, potential health effects from inhalation of HFO-1336mzz-Z include skin or eye irritation or frostbite. Exposure to high concentrations of HFO-1336mzz-Z from misuse or intentional inhalation abuse may cause irregular heartbeat. In addition, HFO-1336mzz-Z could cause asphyxiation if air is displaced by vapors in a confined space. The Workplace Environmental Exposure Limit (WEEL) committee of the Occupational Alliance for Risk Science (OARS) reviewed available animal toxicity data and recommends a WEEL for the workplace of 500 parts per million (ppm) (3350 mg/m
HFO-1336mzz-Z is not regulated as a hazardous air pollutant (HAP) under title I of the CAA. Also, it is not listed as a toxic chemical under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).
The Toxic Substances Control Act (TSCA) gives the EPA authority to assess and prevent potential unreasonable risks to human health and the environment before a new chemical substance is introduced into commerce. Section 5 of TSCA requires manufacturers and importers to notify the EPA before manufacturing or importing a new chemical substance by submitting a Premanufacture Notice (PMN) prior to the manufacture (including import) of the chemical. Under the TSCA New Chemicals Program, the EPA then assesses whether an unreasonable risk may, or will, be presented by the expected manufacturing, processing, distribution in commerce, use, and disposal of the new substance. The EPA has determined, however, that domestic manufacturing, use in non-industrial products, or use other than as described in the PMN may cause serious chronic health effects. To mitigate risks identified during the PMN review of HFO-1336mzz-Z, the EPA issued a Significant New Use Rule (SNUR) under TSCA on June 5, 2015, to require persons to submit a Significant New Use Notice (SNUN) to the EPA at least 90 days before they manufacture or process HFO-1336mzz-Z for uses other than those described in the PMN (80 FR 32003, 32005, June 5, 2015). The required notification will provide the EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. The EPA, therefore, believes that existing programs address the risk of toxicity associated with the use of HFO-1336mzz-Z.
The Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (IPCC AR5) estimated the lifetime of HFO-1336mzz-Z to be approximately 22 days (Baasandorj
The EPA received five comments on the May 1, 2018, notice of proposed rulemaking. One commenter supported the proposed action to exempt HFO-1336mzz-Z from the EPA's definition of VOC in 40 CFR 51.100(s), one opposed the proposed action, and three raised issues that were outside the scope of this rulemaking including a discussion about air and water quality in Asia and Mexico, and climate change. These three anonymous comments failed to identify any specific issue that is germane to our proposal to exempt HFO-1336mzz-Z. Substantial comments and the EPA's responses are provided below.
The reason HFO-1336mzz-Z is currently regulated as a VOC is because it meets the EPA's definition of VOC in 40 CFR 51.100(s) as “any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid . . .
The EPA would like to clarify the statement in the proposal which referred to “existing regulatory or non-regulatory programs that are specifically designed to address” other environmental issues besides tropospheric O
To the extent the commenter is raising concerns that the EPA's action will result in non-EPA organizations treating HFO-1336mzz-Z differently, we note that this action does not prohibit state and local air pollution regulatory agencies from regulating HFO-1336mzz-Z. Some local agencies continue restrictions on the use of certain compounds that have been excluded from the definition of VOC by the EPA.
With respect to the comment that the petitioner's data could potentially be biased, the EPA uses credible, peer-reviewed information in its review of VOC exemption petitions. In this regard, and as discussed in our proposed rule and in this action, we note that the journal article submitted by DuPont on HFO-1336mzz-Z reaction rates was performed by the National Oceanic and Atmospheric Administration and published in
Therefore, for reasons discussed above, the EPA is finalizing this rule with no changes. The EPA finds that HFO-1336mzz-Z is negligibly reactive with respect to its contribution to tropospheric O
The EPA is responding to the petition by revising its regulatory definition of VOC at 40 CFR 51.100(s) to add HFO-1336mzz-Z to the list of compounds that are exempt from the regulatory definition of VOC because it is less reactive than ethane based on a comparison of mass-based MIR and molar-based MIR metrics and is, therefore, considered negligibly reactive. As a result of this action, if an entity which uses or produces this compound and is subject to the EPA regulations limiting the use of VOC in a product, limiting the VOC emissions from a facility, or otherwise controlling the use of VOC for purposes related to attaining the O
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action is considered an Executive Order 13771 deregulatory action. This final rule provides meaningful burden reduction by exempting HFO-1336mzz-Z from the VOC regulatory definition and relieving manufacturers, distributers, and users from recordkeeping or reporting requirements. This action is voluntary in nature and has non-quantifiable cost savings given the unpredictability in who or how much of it will be used.
This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action removes HFO-1336mzz-Z from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers, and users of the compound from tropospheric O
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments, or the private sector.
This action does not have federalism implications. It 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.
This action does not have tribal implications, as specified in Executive Order 13175. This final rule removes HFO-1336mzz-Z from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers and users from tropospheric O
This action is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFO-1336mzz-Z is utilized in specific industrial applications where children are not present and dissipates quickly (
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629 February 16, 1994). This action removes HFO-1336mzz-Z from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers, and users of the compound from tropospheric O
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date the final action is published in the
Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For reasons stated in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:
23 U.S.C. 101; 42 U.S.C. 7401-7671q.
(s) * * *
(1) This includes any such organic compound other than the following, which have been determined to have negligible photochemical reactivity: Methane; ethane; methylene chloride (dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride (PCBTF); cyclic, branched, or linear completely methylated siloxanes; acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane (HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1 chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) modernizes the Open Video System (OVS) filing procedures by specifying that OVS applications be required to send certification applications, including FCC Form 1275 and all attachments, as well as notices of intent, via electronic email (email) delivery to a designated Commission email address. The FCC also eliminates certain existing requirements associated with the rule. Parties wishing to respond to a FCC Form 1275 filing must submit comments or oppositions via electronic mail (email).
For additional information on this proceeding, contact Sonia Greenaway Mickle,
This is a summary of the Commission's Order, FCC 18-150, adopted and released on October 25, 2018. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at
1. The Commission in this Order establishes electronic filing procedures for parties seeking to operate an Open Video System (OVS) to submit a certification application and notice of intent. By replacing our current paper filing requirements for OVS applications and notices with an electronic filing system, this Order modernizes our regulations, reduces burdens for OVS applicants, and increases the efficiency of the Commission's processing of applications.
2. The Telecommunications Act of 1996 added section 653 to the Communications Act of 1934, as amended (the Act), establishing OVS as a new framework for entry into the multichannel video programming distribution marketplace.
3. Because electronic filing is a more modern and efficient way for parties to file and for Commission staff to receive applications, we conclude that the OVS paper filing requirements have outlived their usefulness. The Commission has moved to electronic filing for other applications and filings.
4. Therefore, we modify the procedural rules for the filing of OVS certification applications and notices of intent to make the process less burdensome for applicants and to ensure that these documents are timely received by Commission staff.
5.
6.
7. Accordingly,
8.
Administrative practice and procedure, Cable television, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
(d)(1) All open video system certification applications, including FCC Form 1275 and all attachments, must be filed via electronic mail (email) at the following address:
(2) On or before the date an FCC Form 1275 is filed with the Commission, the applicant must serve a copy of its filing on all local communities identified pursuant to paragraph (c)(6) of this section and must include a statement informing the local communities of the Commission's requirements in paragraph (e) of this section for filing oppositions and comments. Service by mail is complete upon mailing, but if mailed, the served documents must be postmarked at least 3 days prior to the filing of the FCC Form 1275 with the Commission.
(e) * * *
(2) Parties wishing to respond to a FCC Form 1275 filing must submit comments or oppositions via electronic mail (email) at the following address:
(f) If the Commission does not disapprove the certification application within ten days after receipt of an applicant's request, the certification application will be deemed approved. If disapproved, the applicant may file a revised certification or refile its original submission with a statement addressing the issues in dispute in accordance with the procedures described in paragraph (d) of this section. Such refilings must be served on any objecting party or parties and on all local communities in which the applicant intends to operate pursuant to instructions in paragraph (d)(2) of this section. The Commission will consider any revised or refiled FCC Form 1275 to be a new proceeding and any party who filed comments regarding the original FCC Form 1275 will have to refile their original comments if they think such comments should be considered in the subsequent proceeding.
(b) * * *
(1)
Department of Veterans Affairs.
Supplemental notice of proposed rulemaking.
On October 16, 2017, the Department of Veterans Affairs published a proposed rulemaking to amend its regulations on the provision of prosthetic and rehabilitative items and services. This supplemental notice of proposed rulemaking (SNPRM) provides clarification about provisions of that proposed rulemaking and seeks additional public comments on them. This SNPRM also provides notice regarding certain communications between VA and external parties regarding the proposed rule, and a summary of these communications has been added to the public docket of this rulemaking.
Comments must be received by VA on or before December 28, 2018.
Written comments may be submitted by through
Penny Nechanicky, National Program Director for Prosthetic and Sensory Aids Service (10P4RK), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420; (202) 461-0337. (This is not a toll-free number.)
On October 16, 2017, VA published a proposal to amend VA regulations governing the provision of prosthetic and rehabilitative items and services to eligible veterans.
VA asked for comments on the proposed rule on or before December 15, 2017, and we received 305 comments. A number of those commenters raised concerns about proposed § 17.3240, “Furnishing Authorized Items and Services,” and whether the proposal would alter VA's current practices regarding veterans' choice, particularly with regard to the provision of artificial limbs, as reflected, in part, in two Veterans Health Administration (VHA) Handbooks. Commenters also raised concerns about whether the proposal conflicts with the Veterans Access, Choice, and Accountability Act of 2014 (“Choice Act”), which established VA's Veterans Choice Program.
With this SNPRM, we seek to clarify the intended effect of proposed § 17.3240, explain our current practices and processes relating to that provision, and request additional comments on it. We also propose edits to proposed § 17.3240 as explained in more detail below. We will address all of the comments that VA received on the proposed rule and any comments VA receives on this SNPRM in our final rulemaking.
We clarify that the proposed rule and this SNPRM would not result in a different experience for most veterans receiving prosthetics and related care from VA. In proposed § 17.3240, we are codifying our current practice of providing all prosthetic and rehabilitative items and services under § 17.3230. With regard to the provision of artificial limbs under the proposed rule, we propose to revise VHA's existing policies that allow veterans to choose the provider of artificial limbs in limited circumstances. We also propose to align policies and practices to be consistent with the provision of all other prosthetic and rehabilitative items and services, with the community care authorities (
Following these policies would also not be consistent with our contracting authorities, such as the Federal Acquisition Regulations (FAR) and VA Acquisition Regulations (VAAR). These policies have been left to each medical facility to interpret and apply, which has resulted in inconsistent application across the country. In a 2012 audit of the management and acquisition of
The current decision making process for providing prosthetic and rehabilitative items and services starts with a clinical evaluation of a veteran's needs by a VA health care provider or authorized community (
We note that the decision of
As previously discussed, there is some variation in the provision of artificial limbs throughout VHA, specifically with regard to the role of the veteran and the clinician in the determination of how prescribed items and services are provided. The following is a discussion on the current national preferred process for the provision of such items and encompasses the process VA intends to continue pursuant to proposed § 17.3240. Similar to the provision of other prosthetic and rehabilitative items and services under proposed 38 CFR 17.3230 as explained above, in the instance of the provision of an artificial limb, VA first requires an evaluation of a veteran's clinical need for such item. This evaluation is typically done by the amputee clinic team. If a veteran has been evaluated by an authorized community provider, any prescription for an artificial limb and related components written by that authorized community provider is referred to the amputee clinic team, particularly because the authorized community provider may not specialize in artificial limb evaluation. Oftentimes, the prescription does not contain sufficient information for VA to provide directly or through a VA-authorized prosthetist all the components, accessories, supplies, and related services necessary to fabricate an artificial limb. Furthermore, agreements with VA-authorized prosthetists for the artificial limb and related services must include Healthcare Common Procedure Coding System (HCPCS) codes, which VA determines based on an evaluation of the patient by the amputee clinic team. The amputee clinic team conducts an assessment to determine the veteran's clinical needs, and along with the veteran, identifies the appropriate artificial limb and related components needed and makes a determination on how the item(s) will be provided. As discussed in the previous section, this decision is in consultation with the veteran and prioritizes veterans' clinical needs. Generally, if a VA medical
Many commenters raised concerns about VA's statement in the proposed rule at 82 FR 48025 that the decision as to whether VA or a VA-authorized vendor (
While the factors VA considers in making the determination of how to provide the authorized item or service will vary, we would continue to ensure that the veteran's clinical needs drive how the agency determines whether VA can directly provide the prescribed item or service, or whether VA will use an authorized vendor in the community to provide the item or service, while also ensuring that VA is administering these benefits in a fiscally responsible and consistent manner.
Other commenters expressed concern that administrative business decisions would not be consistent with other authorities, particularly the Choice Act. First, we note that since the publication of the proposed rule in October 2017, the President signed into law the VA MISSION Act of 2018 (Pub. L. 115-182). Section 143 of this Act provides that VA may not use the Choice Act authority to furnish care and services after June 6, 2019. While we address, in this SNPRM, the concerns regarding the Choice Act that were raised by commenters, we
We note that eligibility for the Veterans Choice Program implemented pursuant to the Choice Act is dependent on meeting certain criteria defined in § 17.1510. In comparison, eligibility for prosthetics and rehabilitative items and services is set forth in proposed § 17.3220, which would only require that the veteran be enrolled in VA health care pursuant to § 17.36 or exempt from enrollment under § 17.37, or that the veteran be otherwise receiving care or services under chapter 17 of title 38 U.S.C. If the veteran meets any of these criteria, he or she would be eligible to receive a prosthetic or rehabilitative item or service so long as such item or service serves as a direct and active component of the veteran's treatment or rehabilitation. Similar to the Choice Program, factors such as geographic availability are considered in making the determination. However, VA always considers clinical factors in making the determination of who will provide the prescribed item or service. While the eligibility criteria for when a veteran is able to seek care from a community provider under the Veterans Choice Program are generally administrative, the determination of who provides the prosthetic and rehabilitative item or service under § 17.3240 is both administrative and clinical. We note that this latter determination is broader and less stringent than the determination under the Veterans Choice Program and provides the veteran with input into whether VA or an authorized VA vendor provides him or her with the prescribed item or service.
Relatedly, general concerns were raised that proposed § 17.3240 is inconsistent with the Choice Act. While VA may not use the Choice Act to furnish care and services after June 6, 2019, as described above, we believe these authorities are consistent with one another, or where they are potentially inconsistent, they are so in a way to the benefit of the veteran in that this proposed rule is broader and less stringent than the eligibility requirements under the Veterans Choice Program. We note that the Choice Act requires VA approval prior to obtaining care from a community provider, and there are specific criteria that veterans and community providers must meet for care to be authorized and approved. See §§ 17.1500
In addition to the Choice Act, commenters raised concerns about whether the proposed rule would implicate other community care authorities, such as 38 U.S.C. 8153 and 1703. Sections 8153 and 1703 are used by VA to obtain medical care in the community; however, we note that section 1703 will be revised significantly by 101 of the VA MISSION Act of 2018. These changes will become effective when VA publishes regulations implementing section 101 of the VA MISSION Act of 2018. The proposed rule, as amended by this SNPRM, would not limit, impact, or be inconsistent with VA's existing or future authorities under sections 8153 and 1703. These are not authorities that we have used to purchase prescribed prosthetic and rehabilitative items or services. Similar to the Choice Program, if the entity or provider authorized under sections 1703 and 8153 to provide care to a veteran prescribes a prosthetic or rehabilitative item or service, VA would then proceed to procure that item or service as long as it is part of the original authorized care and serves as a direct and active component of the veteran's treatment or rehabilitation. VA would then use its prosthetic procurement authorities (
Additionally, we note that 38 U.S.C. 1703 distinguishes between veterans with service connected and nonservice connected disabilities when determining their eligibility to obtain care outside VA under that authority. Section 101 of the VA MISSION Act of 2018 will revise section 1703 to remove this distinction, and to the extent necessary, such elimination would be reflected under these prosthetics regulations. We note that the proposed prosthetics regulations, as amended by this SNPRM, do not distinguish between veterans with service connected conditions and nonservice connected conditions.
Commenters also raised concerns about the authority for proposed § 17.3240, as VA did not cite to or reference the statutory authority for that section. As mentioned previously in this discussion, 38 U.S.C. 1710, the authorizing statute, requires VA to furnish medical services to certain eligible veterans and authorizes VA to provide them to other eligible veterans. See also, 38 U.S.C. 1701(6), which defines the term “medical services” in
VA also received many comments stating that the proposed rule contradicted existing VHA policies and practices relating to the provision of artificial limbs and the veteran's choice of provider. We note that VHA Handbooks 1173.2 “Furnishing Prosthetic Appliances and Services” and 1173.3 “Amputee Clinic Teams and Artificial Limbs” indicate that a veteran is able to choose his or her prosthetist, including community (
As mentioned previously in this document, these provisions in these two handbooks have not been consistently applied as written throughout VA's medical facilities in the provision of artificial limbs. We propose to revise these policies, because following them as written has resulted in inconsistent application, and ambiguity and misinterpretation within VA and by the public. Additionally, as prosthetists have varying levels of expertise and familiarity with artificial limbs, if VA followed these policies as written, VA would not be able to confirm or validate that the prosthetist chosen by the veteran would be the most appropriate prosthetist to provide the artificial limb and associated services. It was not our intent that VA clinical providers would not be involved in this very important decision on how the veteran's needs can be best met. As previously mentioned, the veteran and the VA provider would work together to determine what item or service is needed to meet the veteran's clinical needs, and who may be able to provide such item or service. The veteran's preferences will be part of that decision with the VA provider. Through this rulemaking, we seek to ensure a standardized and consistent process across VA for the provision of artificial limbs that is consistent with the current national preferred process and with the process for the provision of all other prosthetic and rehabilitative items and services.
After this rulemaking is final, VA will rescind VHA Handbooks 1173.2 and 1173.3 and develop new policies to update and clarify its procedures, consistent with this regulation.
Based on these comments received and the discussion above, VA now proposes to revise the language of § 17.3240, as proposed in 82 FR 48018. In revised proposed § 17.3240(a)(1), we would state that VA providers will prescribe items and services based on the veteran's clinical needs and will do so in consultation with the veteran. Once the prescribed item or service is determined to be authorized under § 17.3230, VA will determine whether VA or a VA-authorized vendor will furnish authorized items and services under § 17.3230 to veterans eligible for such items and services under § 17.3220. We would add paragraph (a)(2) to § 17.3240 to state that this determination on whether VA or a VA-authorized vendor will furnish the authorized item or service under § 17.3230 will be based on, but not limited to, such factors as the veteran's clinical needs, VA capacity and availability, geographic availability, and cost.
Revising the language of § 17.3240, as proposed in 82 FR 48018, would codify our current practices and the current national preferred process for the provision of artificial limbs; it also would clarify that the item or service that is authorized is prescribed based on the veteran's clinical needs and is done in consultation with the veteran. In response to many comments regarding this clinical decision and the veteran's involvement in that decision, we explicitly note that the prescription is clinical and based on the veteran's clinical needs. For similar reasons, we would also clarify that the prescription is generated in consultation with the veteran. This would be explained in proposed 17.3240(a)(1).
Additionally, as mentioned, we received comments that the decision on how to provide an authorized item or service should not be administrative, but rather clinical. Relatedly, at least one commenter raised the concern that we did not identify or explain the factors we would use in making this determination. In response to the comments received, we would revise proposed § 17.3240 to clarify that the determination on how the item or service is provided is based on clinical and administrative factors. In proposed § 17.3240(a)(2), we would list factors that would be considered when procuring and providing the authorized item or service. This list of factors is non-exhaustive. Not all factors would be considered in every instance, as the provision of each authorized item or service will vary, and additional factors could be considered as needed. For example, a specific wheelchair may be prescribed as that may be the only wheelchair that would meet the veteran's clinical needs, and there may be only one manufacturer of that wheelchair. In that instance, if the wheelchair meets the direct and active component standard, it will be authorized and VA would proceed to procure that wheelchair directly from the manufacturer without consideration of the other factors. Additionally, a provider may prescribe diabetic shoes to meet a veteran's clinical needs, and if VA has those in its inventory, it will provide those to the veteran. If there are none in inventory and VA needs to procure the prescribed shoes, then we will look at our existing contracts to purchase such items. Additional factors such as cost may be considered in that instance to ensure that we are being fiscally responsible. As explained previously, VA capacity and availability can refer to whether a VA medical facility has the resources and equipment to fabricate an authorized item or service, or whether VA providers are available or have the skills, abilities, and experience to provide an authorized item or service. With regard to geographic availability, we note that how this factor may be considered would vary. There would be no set distance or mileage that we would define when considering geographic
How the authorized item or service is obtained and provided to the veteran will vary based on each individual case. However, we note that the veteran's clinical needs are always prioritized when VA determines how to provide the authorized item or service. Proposed § 17.3240 would ensure that VA is fiscally responsible. VA retains authority over this determination of how the authorized item or service is provided to ensure that there is consistency across VHA in the provision of authorized prosthetic and rehabilitative items and services, and to ensure quality control.
One commenter also noted that we incorrectly referenced proposed § 17.3210 in proposed § 17.3240. Proposed § 17.3210 is the section on definitions whereas proposed § 17.3220 is the section on eligibility. In order to correctly reference the eligibility section, we would update proposed § 17.3240 to refer to § 17.3220 instead of § 17.3210.
As previously mentioned, since the publication of VA's proposed rule in October 2017, the President signed into law the VA MISSION Act of 2018(Pub. L. 115-182). VA is working to implement this new authority, and should any further revisions to VA's prosthetic regulations be needed as a result of this recently enacted legislation, VA will address those changes through subsequent rulemaking related specifically to the VA MISSION Act of 2018.
The Office of the VA Secretary also received two inquiry letters during the public comment period for the proposed rule. One from former Senator Bob Dole and the other from Peter Thomas, General Counsel for the National Association for the Advancement of Orthotics and Prosthetics. Both of these letters were treated as public comments and added to docket ID VA-2017-VHA-0023 in
The letters stated the intent and purpose of the proposed rule to organize and update the current prosthetic and rehabilitative items and services regulations and define the items and services available. These letters also explained that these rules were proposed in order to ensure standardization and consistency in the provision of such items and services throughout VA, while also ensuring that veterans receive the most appropriate and highest quality items. The then-Secretary's letter to Senator Dole further explained that VA was codifying its practice of determining whether VA has the capacity or capability to provide items and services directly to veterans, or whether a VA-authorized vendor may be utilized, which is based on several factors including the veteran's clinical needs, costs of items and services, or wider selection of items and services. In both letters, VA stated that these letters would be treated as public comments and that VA will consider and respond to their issues in the final rulemaking. Additionally, the Department's letters containing our responses to the two letters have been made publicly available in the supplemental notice of proposed rulemaking docket.
On June 14, 2018, VHA met with individuals from McGuire Woods Consulting, who represent American Orthotic and Prosthetic Association (AOPA), at their request, to discuss several prosthetic issues, including the proposed rulemaking at 82 FR 48018 (RIN 2900-AP46). During this discussion, VHA was asked the status of RIN 2900-AP46 and where VHA thought the policy on veterans being able to see outside providers was going. VHA explained that we will continue to provide the necessary care inside and outside VA and that reducing the amount of care in the community is not our intent. With regard to RIN 2900-AP46, VHA conveyed that it received comments, including those of AOPA; is considering these comments; and is drafting the final rule, which will have to be approved by the Administration, and VHA cannot say when it anticipates the final rule to be published. VHA was also asked about the impact of the VA MISSION Act of 2018 on RIN 2900-AP46. VHA stated that this Act will provide more flexibility to provide care in the community and that VHA did not believe the Act would affect the provision of prosthetic and rehabilitative items and services. A summary of this meeting has been made publicly available in the supplemental notice of proposed rulemaking.
Lastly, the House Veterans' Affairs Committee, Health Subcommittee, held a roundtable regarding prosthetics issues on July 25, 2018. VA was a participant at this roundtable. During this roundtable, concerns were raised about the proposed rule, RIN 2900-AP46, that were similar to those concerns raised during the public comment period. Within this SNPRM, we have addressed these concerns, which were similar to those raised during the public comment period.
Based on all of the comments received regarding proposed § 17.3240, we propose to revise the text of proposed § 17.3240 as explained previously in this SNPRM.
The Code of Federal Regulations, as proposed to be revised by the proposed rulemaking at 82 FR 48018 and this SNPRM, would represent the exclusive legal authority on this subject. No contrary guidance or procedures would be authorized. All VA guidance would be read to conform with the proposed rulemaking at 82 FR 48018 and this SNPRM if possible or, if not possible, such guidance would be superseded by this SNPRM and the proposed rulemaking at 82 FR 48018.
This SNPRM contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this SNPRM would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant to 5 U.S.C. 605(b), these amendments would be exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety
This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This SNPRM would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.009, Veterans Medical Care Benefits; 64.013, Veterans Prosthetic Appliances.
Administrative practice and procedure, Government contracts, Health care, Health facilities, Health professions, Medical devices, Veterans.
The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on October 23, 2018, for publication.
For the reasons set forth in the preamble, we propose to amend 38 CFR part 17 as follows:
38 U.S.C. 501, and as noted in specific sections.
(a)(1) VA providers will prescribe items and services based on the veteran's clinical needs and will do so in consultation with the veteran. Once the prescribed item or service is determined to be authorized under § 17.3230, VA will determine whether VA or a VA-authorized vendor will furnish authorized items and services under § 17.3230 to veterans eligible for such items and services under § 17.3220.
(2) This determination on whether VA or a VA-authorized vendor will furnish the authorized item or service under § 17.3230 will be based on, but not limited to, such factors as the veteran's clinical needs, VA capacity and availability, geographic availability, and cost.
(b) Except for emergency care reimbursable under 38 CFR 17.120 through 17.132 or 38 CFR 17.1000 through 17.1008, prior authorization of items and services under § 17.3230 is required for VA to reimburse VA-authorized vendors for furnishing such items or services to veterans. Prior authorization must be obtained from VA by contacting any VA medical facility.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a planning meeting of the Vermont Advisory Committee to the Commission will be convened by teleconference call at 11:00 a.m. (EST) on Friday, December 7, 2018. The purpose of the meeting is for discussing the proposal on school to prison pipeline issues in Vermont.
Friday, December 7, 2018, at 11:00 a.m. EST.
Evelyn Bohor at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-877-260-1479 and conference call 2568802. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operator with the toll-free conference call-in number: 1-877-260-1479 and conference call 2568802.
Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The North Pacific Observer Program (Observer Program) is implemented under the authority of section 313 of the Magnuson-Stevens Fishery Conservation and Management Act and regulations at 50 CFR 679. Through the
All vessels and processors that participate in federally managed or parallel groundfish and halibut fisheries off Alaska are assigned to one of two categories: (1) The full observer coverage category, where vessels and processors obtain observer coverage by contracting directly with observer providers; or (2) the partial coverage category, where NMFS, in consultation with the North Pacific Fishery Management Council determines when and where observer coverage is needed. Some vessels and processors may be in full coverage for part of the year and partial coverage at other times of the year depending on the observer coverage requirements for specific fisheries. Funds for deploying observers on vessels in the partial coverage category are provided through a system of fees based on the gross ex-vessel value of retained groundfish and halibut. This observer fee is assessed on all landings by vessels that are not otherwise in full coverage. Information collected for the observer fee is approved under OMB Control No. 0648-0711.
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before January 28, 2019.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Bruce Moravchik, National Ocean Service (NOS), 1305 East-West Hwy., Bldg. SSMC4, Silver Springs, MD 20910-3278, (240) 533-0874,
This request is for a new voluntary information collection.
NOAA Office of Education is sponsoring a voluntary multi-question survey to assess the needs of educators pertaining to future NOAA multimedia products and programs. In developing multimedia materials that convey NOAA's science, service and stewardship, the Agency must insure that these resources are of the highest quality and meet the needs of formal and informal educators across the United States. To achieve this goal, it will be necessary to conduct surveys identifying the types of educational programs and products of the highest interest and greatest need by formal and informal educators. By surveying external educators to gather this information, budget expenditures will be used optimally to develop appropriate products and programs most desired by educators to support and enhance Ocean, Earth science, and related STEM education subjects throughout our nation.
The voluntary needs assessment mechanism will be distributed via email with a link to a Google form to external educators subscribed to NOAA education programs as well as their partners email distribution lists. The voluntary needs assessment mechanism will also be distributed in person (paper and electronically) at education conferences, workshops, and other venues hosting educators.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection;
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by December 13, 2018.
Persons wishing to comment on this Settlement Agreement should send written comments to Comment 19-C0002, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.
Michele Melnick, Trial Attorney, Division of Compliance, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7592.
The text of the Agreement and Order appears below.
1. In accordance with the Consumer Product Safety Act, 15 U.S.C. §§ 2051- 2089 (“CPSA”) and 16 C.F.R. § 1118.20, EKO Development, Ltd. and EKO USA, LLC (collectively, “EKO”) and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement and the incorporated attached Order resolve staff's charges set forth below.
2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. §§ 2051-2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 C.F.R. § 1118.20(b). The Commission issues the Order under the provisions of the CPSA.
3. EKO Development, Ltd. (“EKO Development”) is a corporation, organized and existing under the laws of China, with its principal place of business in China. EKO USA, LLC (“EKO USA”) is a corporation, organized and existing under the laws of the state of Nevada, with its principal place of business in Stuart, Florida.
4. Between November 2013 and May 2015, EKO manufactured approximately 367,000 EKO Sensible Eco Living Trash Cans (“Subject Products” or “Trash Cans”). The Trash Cans are 80 liter stainless steel, metal-cylinder Trash Cans with a black plastic protective collar in the opening on the back of the Trash Can.
5. The Trash Cans were sold exclusively at Costco Wholesale Corporation at its warehouse stores throughout the United States from December 2013 through May 2015.
6. The Trash Cans are a “consumer product,” “distribut[ed] in commerce,” as those terms are defined or used in sections 3(a)(5) and (8) of the CPSA, 15 U.S.C. § 2052(a)(5) and (8). EKO is a “manufacturer” as such term is defined in section 3(a)(11) of the CPSA, 15 U.S.C. § 2052(a)(11).
7. The Trash Cans contain a defect which could create a substantial product hazard or create an unreasonable risk of serious injury because the black plastic protective collar in the opening on the back of the Trash Can can detach from the sharp metal handle, posing a laceration hazard to consumers.
8. Beginning in April 2014, EKO received complaints from consumers who received laceration injuries, including some serious injuries as defined in 16 C.F.R. § 1115.6(c), from the sharp metal handle of the Trash Cans.
9. In August 2014, EKO approved a design change to the Trash Cans to add a two-piece plastic handle cover to address the laceration hazard. The design change was implemented on the Trash Cans that were produced in August 2014 and shipped to Costco in September 2014.
10. Despite having information that reasonably supported the conclusion that the Trash Cans contained a defect or created an unreasonable risk of serious injury or death, EKO did not notify the Commission immediately of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. §§ 2064(b)(3) and (4).
11. EKO and the CPSC jointly announced a recall of 367,000 Trash Cans on July 17, 2015, because the Trash Cans posed a laceration risk to consumers.
12. In failing to immediately inform the Commission about the defect or unreasonable risk associated with the Trash Cans, EKO knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d).
13. Pursuant to Section 20 of the CPSA, 15 U.S.C. § 2069, EKO is subject to civil penalties for its knowing violation of section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4).
14. EKO's settlement of this matter does not constitute an admission of staff's charges as set forth in paragraphs 4 through 13 above.
15. EKO Development, Ltd. is a small Chinese company based in Guangzhou, China. EKO was completely unaware of the CPSC reporting requirements. EKO relied upon its third party insurance administrator to handle the claims received from consumers and was never advised of the potential obligation to report under sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. § 2064(b)(3) and (4).
16. Under the CPSA, the Commission has jurisdiction over the matter involving the Trash Cans and over EKO.
17. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by EKO or a determination by the Commission that EKO violated the CPSA's reporting requirements.
18. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation, EKO shall pay a civil penalty in the amount of one million dollars (US $1,000,000). EKO shall pay the one million dollar (US $1,000,000) civil penalty in installments, with $250,000 to be paid within thirty (30) calendar days after the Firm receives service of the Commission's final Order accepting the Agreement (“Final Acceptance”); $250,000 to be paid ninety (90) days after Final Acceptance; $250,000 to be paid one hundred eighty (180) days after Final Acceptance; and $250,000 to be paid one (1) year after Final Acceptance. EKO shall also provide a written affirmation to CPSC's Office of the General Counsel within sixty (60) days after Final Acceptance declaring that EKO has implemented and will enforce a written comprehensive compliance program pursuant to paragraph 27, below.
19. EKO, through its Principal or Chief Executive Officer, shall notify CPSC's General Counsel in writing at least ten (10) calendar days after any reorganization, consolidation, merger, acquisition, dissolution, assignment, sale, transfer, or similar transaction or series of transactions resulting in a successor entity to EKO, the transfer or disposition of substantially all of the assets of EKO, or any other changes in corporate structure that may affect EKO's obligations arising out of this Agreement.
20. All payments to be made under the Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via:
21. This Agreement has been compromised by the Commission pursuant to its statutory authority under Section 20(c), which requires the Commission to consider, among other things, the appropriateness of the penalty to the size of the business of the person charged, including how to mitigate undue adverse economic impacts on small businesses. EKO represents and warrants that the financial statements of the Firm provided to the Commission and written representations in connection with the matters addressed in this Agreement are complete, accurate, and current, have been prepared on a consistent basis throughout the periods indicated and fairly present the financial condition and results of operations and cash flow of the Firm as of the dates, and for the periods, indicated therein. EKO shall notify the Commission in writing if any information supplied in connection with this Agreement is discovered to be inaccurate or untrue, and shall provide the Commission with documents or information that contain information that accurately conveys such financial information.
22. The parties agree that immediately upon the occurrence of an “Event of Default,” the entire penalty amount ($1,000,000), plus any accrued and unpaid interest, minus any payments by EKO, shall be come due and payable, and the Commission may take further action as warranted without notice or further action by any party. An “Event of Default” means:
a. a failure of the Firm to pay the $1,000,000 (or any portion thereof) when due and payable, as set forth in paragraph 18 above;
b. a breach of any representation or warranty of the Firm made in this Agreement or in connection with this Agreement as it pertains to the Firm's financial status;
c. a failure by the Firm to observe or perform any of its obligations or agreements as set forth in the Agreement, including the agreement to implement and enforce a compliance program designed to ensure compliance with the CPSA, including section 19(a), as set forth in paragraph 27 below; or
d. a failure by the Firm to comply with CPSA sections 15(b) and 19(a) for three years after the effective date of this Agreement.
23. All unpaid amounts, if any, due and owing under the Agreement shall constitute a debt due and immediately owing by EKO to the United States, and interest shall accrue and be paid by EKO at the federal legal rate of interest set forth at 28 U.S.C. § 1961(a) and (b) from the date of Default, until all amounts due have been paid in full (hereinafter “Default Payment Amount” and “Default Interest Balance”). EKO shall consent to a Consent Judgment in the amount of the Default Payment Amount and Default Interest Balance, and the United States, at its sole option, may collect the entire Default Payment Amount and Default Interest Balance, or exercise any other rights granted by law or in equity, including, but not limited to, referring such matters for private collection; and EKO agrees not to contest, and hereby waives and discharges any defenses, to any collection action undertaken by the United States, or its agents or contractors, pursuant to this paragraph. EKO shall pay the United States all reasonable costs of collection and enforcement under this paragraph, respectively, including reasonable attorney's fees and expenses.
24. After staff receives this Agreement executed on behalf of EKO, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
25. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and it is subject to the provisions of 16 C.F.R. § 1118.20(h). Upon the later of: (i) the Commission's final acceptance of this Agreement and service of the accepted Agreement upon EKO, and (ii) the date of the issuance of the final Order, this Agreement shall be in full force and effect and shall be binding upon the parties.
26. Effective upon the later of: (i) the Commission's final acceptance of this Agreement and service of the accepted Agreement upon EKO, and (ii) the date of the issuance of the final Order, for good and valuable consideration, EKO hereby expressly and irrevocably waives and agrees not to assert any past, present or future rights to the following, in connection with the matter described in this Agreement: (i) an administrative or judicial hearing; (ii) judicial review or other challenge or contest of the
27. EKO shall create, maintain and enforce a compliance program designed to ensure compliance with the CPSA, including section 19(a), of the CPSA with respect to any consumer product imported, manufactured, distributed or sold by EKO, and which shall contain the following elements: (i) written standards, policies and procedures, including those designed to ensure that information that may relate to or impact CPSA compliance (including information obtained by quality control personnel) is conveyed effectively to personnel responsible for CPSA compliance, whether or not an injury is referenced; (ii) a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary; (iii) effective communication of company compliance-related policies and procedures regarding the CPSA to all applicable employees through training programs or otherwise; (iv) EKO's senior management participation in a compliance committee responsible for the review and oversight of compliance matters related to the CPSA; (v) retention of all CPSA compliance-related records, and availability of such records to staff upon request; and (vi) procedures designed to ensure that: information required to be disclosed by EKO to the Commission is recorded, processed and reported in accordance with applicable law; that all reporting made to the Commission is timely, truthful, complete, accurate and in accordance with applicable law; and that prompt disclosure is made to EKO's management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to affect adversely, in any material respect, EKO's ability to record, process and report to the Commission in accordance with applicable law.
28. Upon reasonable request of staff, EKO shall provide written documentation of its internal controls and procedures, including, but not limited to, the effective dates of the procedures and improvements thereto. EKO shall cooperate fully and truthfully with staff and shall make available all non-privileged information and materials, and personnel deemed necessary by staff to evaluate EKO's compliance with the terms of the Agreement.
29. The parties acknowledge and agree that the Commission may publicize the terms of the Agreement and Order including disclosing the name of the Subject Products in this or other public announcements.
30. EKO represents that the Agreement: (i) is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of EKO, enforceable against EKO in accordance with its terms. EKO will not directly or indirectly receive any reimbursement, indemnification, insurance-related payment or other payment in connection with the civil penalty to be paid by EKO pursuant to the Agreement and Order.
31. The signatories represent that they are duly authorized to execute this Agreement.
32. The Agreement is governed by the law of the United States.
33. The Agreement and Order shall apply to, and be binding upon, EKO and each of its parents, successors, subsidiaries, divisions, agents, foreign or domestic corporate affiliates, transferees, and assigns, and a violation of the Agreement or Order may subject EKO, and each of its parents, successors, subsidiaries, divisions, agents, foreign or domestic corporate affiliates, transferees, and assigns, to appropriate legal action.
34. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained therein. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties and shall not, therefore, be construed against any party, for that reason, in any subsequent dispute.
35. The Agreement may not be waived, amended, modified or otherwise altered, except as in accordance with the provisions of 16 C.F.R. § 1118.20(h). The Agreement may be executed in counterparts.
36. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and EKO agree in writing that severing the provision materially affects the purpose of the Agreement and the Order.
Dated: October 31, 2018
Dated: October 31, 2018
Dated: October 31, 2018
Dated: November 1, 2018
Upon consideration of the Settlement Agreement entered into between EKO Development, Ltd. and EKO USA, LLC (collectively, “EKO”) and the U.S. Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over EKO, and it appearing that the Settlement Agreement and the Order are in the public interest, it is:
Provisionally accepted and provisional Order issued on the 20th day of November, 2018.
By Order of the Commission:
Office of the Under Secretary of Defense for Intelligence, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by January 28, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Security Service, Program Integration Office, Project Integration Office Process and Governance Manager, ATTN: Chris Kubricky, Quantico, VA 22134 or call the Program Integration Office at (571)-305-6243.
The DD Form 254 is used to identify the classified areas of information involved in a contract and to identify the specific items of information that require protection. DoD Components, non-DoD agencies with formal agreements with DoD for industrial security services, or U.S. contractors under DoD security cognizance in the NISP, provide guidance in the body of the DD Form 254 or its attachments for contracts or other agreements requiring access to classified information.
The respondent is a cleared contractor facility in the NISP under the security cognizance of the Defense Security Service (DSS). Pursuant to security classification guidance of the NISPOM, DoD 5220.22-M, the NISP contractors must provide contract security classification specifications with any contract or agreement that they propose or award. DD Form 254 is the official vehicle for providing this information.
A respondent submits completed DD Forms 254 with any attachments to the applicable subcontractor and to the DoD NISP Cognizant Security Office (
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense is publishing this notice to announce that it is renewing the charter for the Vietnam War commemoration Advisory Committee (“the Committee”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., App) and 41 CFR 102-3.50(d). The Committee's charter and contact information for the Committee's Designated Federal Officer (DFO) can be found at
The Committee provides the Secretary of Defense and the Deputy Secretary of Defense, through the Chief Management Officer (CMO) independent advice and recommendations on the Department of Defense (DoD) program on how to best achieve the following objectives in commemorating the 50th Anniversary of the Vietnam War, as referenced in section 598(c) of Public Law 110-181: (a) Thank and honor veterans of the Vietnam War, including personnel who were held as prisoners of war or listed as missing in action, for their service and sacrifice on behalf of the United States and to thank and honor the families of these veterans; (b) highlight the service of the Armed Forces during the Vietnam War and the contributions of Federal agencies and governmental and non-governmental organizations that served with, or in support of, the Armed Forces; (c) Pay tribute to the contributions made on the home front by the people of the United States during the Vietnam War; (d) Highlight the advances in technology, science, and medicine related to military research conducted during the Vietnam War; and (e) Recognize the contributions and sacrifices made by the allies of the United States during the Vietnam War.
The Committee will be composed of no more than 20 members that will represent Vietnam Veterans, their families, and the American public. Candidates for the Committee will be selected from the Military Services (both retired veterans and active members who served during the Vietnam era), the DoD, the Department of State, the Department of Veterans Affairs, and the Intelligence Community. In addition, candidates from nongovernmental organizations that support veterans or contribute to the public's understanding of the Vietnam War will be selected. All members of the Committee are appointed to provide advice on the basis of their best judgment and without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Committee-related travel and per diem, Committee members serve without compensation.
The public or interested organizations may submit written statements to the Committee membership about the Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Committee. All written statements shall be submitted to the DFO for the Committee, and this individual will ensure that the written statements are provided to the membership for their consideration.
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by January 28, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Military Community Support Program, 4800 Mark Center Drive, Alexandria, VA 22350, ATTN: Spouse Education and Career Opportunities, or call 1-888-363-6431.
Office of the Secretary of Defense, DOD.
Information collection notice.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, we are seeking comment on the development of the following proposed Generic Information Collection Request (Generic ICR): “Fast Track Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” for approval under the Paperwork Reduction Act (PRA). This notice announces our intent to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection.
Consideration will be given to all comments received by January 28, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Information Collections Branch, Directives Division, Attn: Mr. Frederick Licari, 4800 Mark Center Drive, Suite 02G09, Alexandria, VA 22350-3100, Phone: 571-372-0493.
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable.
The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are noncontroversial and do not raise issues of concern to other Federal agencies;
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary and is not retained;
• Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential nonresponse bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Below we provide projected average burden estimates for the next three years.
This is a supplemental notice in the above-referenced proceeding of Power Holding LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is December 11, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for the relicensing of the Ellsworth Hydroelectric Project, located on the Union River, in Hancock County, Maine, and has prepared a Draft Environmental Assessment (DEA) for the project.
The DEA contains staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the DEA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
You may also register online at
Any comments should be filed within 60 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Dr. Nicholas Palso at (202) 502-8854, or at
On October 2, 2018, Badger Mountain Hydro, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Badger Mountain Pumped Storage Project (project) to be located near East Wenatchee in Douglas County, Washington. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project will be a closed-loop pumped storage project with initial fill and make up water coming from local water rights holders, tentatively
The estimated average annual generation of the project would be 473,040 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the eLibrary link of Commission's website at
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on November 14, 2018, Transcontinental Gas Pipe Line Company, LLC (Transco), P.O. Box 1396, Houston, TX 77251-1396, filed an application under section 7(c) of the Natural Gas Act (NGA) requesting authorization to amend its certificate of public convenience and necessity, granted by the Commission on February 3, 2017 in Docket No. CP15-138, which authorized the Atlantic Sunrise Project. Herein, Transco requests authorization to amend its Atlantic Sunrise Project certificate to allow any of the existing compressor units at Compressor Station 605 and Compressor Station 610 to be operated above their currently certificated horsepower. Transco states that the total horsepower utilized at Compressor Station 605 will not exceed the station's total certificated horsepower of 30,000 horsepower and that the total horsepower utilized at Compressor Station 610 will not exceed the station's total certificated horsepower of 40,000 horsepower, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions regarding the application should be directed to Bill Hammons at Transcontinental Gas Pipe Line Company, LLC, Post Office Box 1396, Houston, TX 77251 or at (713) 215-2130.
Pursuant to section 157.9 of the Commission's rules (18 CFR 157.9), within 90 days of this Notice, the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 3 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list and will be notified of any meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission and will not have the right to seek court review of the Commission's final order.
As of the February 27, 2018 date of the Commission's order in Docket No. CP16-4-001, the Commission will apply its revised practice concerning out-of-time motions to intervene in any new Natural Gas Act section 3 or section 7 proceeding.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the Northern Lights 2019 Expansion Project and the Rochester Project, proposed by Northern Natural Gas Company (Northern) in the above-referenced docket. Considering both projects, Northern requests authorization to construct, operate, and maintain new natural gas facilities in Carver, Freeborn, Hennepin, Le Sueur, Morrison, Mower, Olmsted, Rice, Steele, and Wright Counties, Minnesota, and to uprate the maximum allowable operating pressure (MAOP) of a line segment. The projects would allow Northern to provide 138,504 dekatherms per day of new firm natural gas transportation service to serve increased markets for industrial, commercial, and residential uses.
The EA assesses the potential environmental effects of the construction and operation of the Northern Lights 2019 Expansion Project and the Rochester Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed projects, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The Minnesota Pollution Control Agency participated as a cooperating agency in the preparation of the EA. A cooperating agency has jurisdiction by law or special expertise regarding environmental impacts involved with the proposal, and is involved in the NEPA analysis.
The proposed projects includes the following facilities (all located in Minnesota):
• Approximately 12.6 miles of new 16-inch-diameter pipeline in Olmsted County;
• Increase of MAOP on an existing 8-mile-long segment of 16-inch-diameter pipeline in Freeborn and Mower Counties;
• A new town border station with receiver in Olmsted County;
• Relocation of a regulator from Freeborn to Mower County; and
• Appurtenant facilities including two valves and a pig launcher at milepost 0.0 of the Rochester Greenfield Lateral.
• Approximately 10.0 miles of new 24-inch-diameter pipeline in Hennepin and Wright Counties;
• Approximately 4.3 miles of new 8-inch-diameter pipeline loop extension in Morrison County;
• Approximately 1.6 miles of new 6-inch-diameter pipeline looping in Le Sueur County;
• Approximately 3.1 miles of new 24-inch-diameter pipeline extension in Carver County;
• Αa new 11,153-horsepower (hp) compressor station in Carver County;
• Αan additional 15,900 hp of compression at the existing Faribault Compressor Station in Rice County;
• An additional 15,900 hp of compression at the existing Owatonna Compressor Station in Steele County; and
• Appurtenant facilities including valves, pig launchers, and pig receivers.
The Commission mailed a copy of the
Any person wishing to comment on the EA may do so. Your comments should focus on EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on these projects, it is important that we receive your comments in Washington, DC on or before 5:00 p.m. Eastern Time on December 21, 2018.
For your convenience, there are three methods you can use to file your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP18534-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Motions to intervene are more fully described at
Additional information about the projects is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Office of Planning, Research, and Evaluation, Administration for Children and Families, HHS.
Request for public comment.
The Administration for Children and Families (ACF) is proposing an additional data collection activity as part of the Evaluation of Employment Coaching for TANF and Related Populations. The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs approved this information collection in March 2018 (0970-0506). ACF is proposing a second follow-up survey conducted as part of the evaluation.
Written comments and recommendations for the proposed information collection should be sent directly to the following: Office of Management and Budget, Paperwork Reduction Project, Email:
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW, Washington, DC 20201, Attn: OPRE Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
This study will provide an opportunity to learn more about the potential of coaching to help clients achieve self-sufficiency and other desired employment-related outcomes. It will take place over five years in the following employment programs: MyGoals for Employment Success in Baltimore, MyGoals for Employment Success in Houston, Family Development and Self-Sufficiency program in Iowa, LIFT in New York City, Chicago, and Los Angeles; Work Success in Utah; and Goal4 It! in Jefferson County, Colorado. Together, these programs will include Temporary Assistance for Needy Families (TANF) agencies and other public or private employment programs that serve low-income individuals. Each site will have a robust coaching component and the capacity to conduct a rigorous impact evaluation. This study will provide information on whether coaching helps people obtain and retain jobs, advance in their careers, move toward self-sufficiency, and improve their overall well-being. To meet these objectives, this study includes an impact and implementation study, as approved by OMB.
This submission builds on the existing impact study, which randomly assigned participants to either a “program group,” who were paired with a coach, or to a “control group,” who were not paired with a coach. The effectiveness of the coaching will be determined by differences between members of the program and control groups in outcomes such as obtaining and retaining employment, earnings,
The proposed information collection activity is a second follow-up survey, which will be available to participants approximately 21 months after random assignment. The second follow-up survey will provide rigorous evidence on whether the coaching interventions are effective, for whom, and under what circumstances.
Section 413 of the Social Security Act, as amended by the FY 2017 Consolidated Appropriations Act, 2017 (Pub. L. 115-31).
Office of the Secretary, DHHS.
Notice.
The percentages listed in Table 1 will be effective for each of the four quarter-year periods beginning October 1, 2019 and ending September 30, 2020.
Rose Chu, Office of Health Policy, Office of the Assistant Secretary for Planning and Evaluation, Room 447D—Hubert H. Humphrey Building, 200 Independence Avenue SW, Washington, DC 20201, (202) 690-6870.
The Federal Medical Assistance Percentages (FMAP), Enhanced Federal Medical Assistance Percentages (eFMAP), and disaster-recovery FMAP adjustments for Fiscal Year 2020 have been calculated pursuant to the Social Security Act (the Act). These percentages will be effective from October 1, 2019 through September 30, 2020. This notice announces the calculated FMAP rates, in accordance with sections 1101(a)(8) and 1905(b) of the Act, that the U.S. Department of Health and Human Services (HHS) will use in determining the amount of federal matching for state medical assistance (Medicaid), Temporary Assistance for Needy Families (TANF) Contingency Funds, Child Support Enforcement collections, Child Care Mandatory and Matching Funds of the Child Care and Development Fund, Title IV-E Foster Care Maintenance payments, Adoption Assistance payments and Kinship Guardianship Assistance payments, and the eFMAP rates for the Children's Health Insurance Program (CHIP) expenditures. Table 1 gives figures for each of the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. This notice reminds states of adjustments available for states meeting requirements for disproportionate employer pension or insurance fund contributions and adjustments for disaster recovery. At this time, no state qualifies for such adjustments, and territories are not eligible.
This notice also contains the increased eFMAPs for CHIP as authorized under section 2705(b) of the Act, as amended by the HEALTHY KIDS Act of 2017, for fiscal year 2020 (October 1, 2019 through September 30, 2020).
Programs under title XIX of the Act exist in each jurisdiction. Programs under titles I, X, and XIV operate only in Guam and the Virgin Islands. The percentages in this notice apply to state expenditures for most medical assistance and child health assistance, and assistance payments for certain social services. The Act provides separately for federal matching of administrative costs.
Sections 1905(b) and 1101(a)(8)(B) of the Social Security Act (the Act) require the Secretary of HHS to publish the FMAP rates each year. The Secretary calculates the percentages, using formulas in sections 1905(b) and 1101(a)(8), and calculations by the Department of Commerce of average income per person in each state and for the United States (meaning, for this purpose, the fifty states and the District of Columbia). The percentages must fall within the upper and lower limits specified in section 1905(b) of the Act. The percentages for the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands are specified in statute, and thus are not based on the statutory formula that determines the percentages for the 50 states.
Section 1905(b) of the Act specifies the formula for calculating FMAPs as follows:
“Federal medical assistance percentage” for any state shall be 100 per centum less the state percentage; and the state percentage shall be that percentage which bears the same ratio to 45 per centum as the square of the per capita income of such state bears to the square of the per capita income of the continental United States (including Alaska) and Hawaii; except that (1) the Federal medical assistance percentage shall in no case be less than 50 per centum or more than 83 per centum . . . .
Section 1905(b) further specifies that the FMAP for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be 55 percent. Section 4725(b) of the Balanced Budget Act of 1997 amended section 1905(b) to provide that the FMAP for the District of Columbia, for purposes of titles XIX and XXI, shall be 70 percent. For the District of Columbia, we note under Table 1 that other rates may apply in certain other programs. In addition, we note the rate that applies for Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands in certain other programs pursuant to section 1118 of the Act. The rates for the States, District of Columbia and the territories are displayed in Table 1, Column 1.
Section 1905(y) of the Act, as added by section 2001 of the Patient Protection and Affordable Care Act of 2010 (“Affordable Care Act”), provides for a significant increase in the FMAP for
For purposes of Title XIX (Medicaid) of the Social Security Act, the Federal Medical Assistance Percentage (FMAP), defined in section 1905(b) of the Social Security Act, for each state beginning with fiscal year 2006, can be subject to an adjustment pursuant to section 614 of the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA), Public Law 111-3. Section 614 of CHIPRA stipulates that a state's FMAP under Title XIX (Medicaid) must be adjusted in two situations.
In the first situation, if a state experiences no growth or positive growth in total personal income and an employer in that state has made a significantly disproportionate contribution to an employer pension or insurance fund, the state's FMAP must be adjusted. The adjustment involves disregarding the significantly disproportionate employer pension or insurance fund contribution in computing the per capita income for the state (but not in computing the per capita income for the United States). Employer pension and insurance fund contributions are significantly disproportionate if the increase in contributions exceeds 25 percent of the total increase in personal income in that state. A
The second situation arises if a state experiences negative growth in total personal income. Beginning with Fiscal Year 2006, section 614(b)(3) of CHIPRA specifies that, for the purposes of calculating the FMAP for a calendar year in which a state's total personal income has declined, the portion of an employer pension or insurance fund contribution that exceeds 125 percent of the amount of such contribution in the previous calendar year shall be disregarded in computing the per capita income for the state (but not in computing the per capita income for the United States).
No Federal source of reliable and timely data on pension and insurance contributions by individual employers and states is currently available. We request that states report employer pension or insurance fund contributions to help determine potential FMAP adjustments for states experiencing significantly disproportionate pension or insurance contributions and states experiencing a negative growth in total personal income. See also the information described in the January 21, 2014
Section 2006 of the Affordable Care Act provides a special adjustment to the FMAP for certain states recovering from a major disaster. This notice does not contain an FY 2020 adjustment for a major statewide disaster for any state (territories are not eligible for FMAP adjustments) because no state had a recent major statewide disaster and had its FMAP decreased by at least three percentage points from FY 2019 to FY 2020. See information described in the December 22, 2010
Section 2105(b) of the Act specifies the formula for calculating the eFMAP rates as follows:
[T]he “enhanced FMAP”, for a state for a fiscal year, is equal to the Federal medical assistance percentage (as defined in the first sentence of section 1905(b)) for the state increased by a number of percentage points equal to 30 percent of the number of percentage points by which (1) such Federal medical assistance percentage for the state, is less than (2) 100 percent; but in no case shall the enhanced FMAP for a state exceed 85 percent.
Section 2105(b) of the Social Security Act, as amended by Section 2101 of the Affordable Care Act, specifies a modified eFMAP for FY2016-FY2019, providing that the FMAP under section 1905(b) for the state for the fiscal year shall be increased by 23 percentage points, but in no case shall exceed 100 percent. Section 3005 of the HEALTHY KIDS Act further amended Section 2105(b) to specify a modified eFMAP for FY2020, providing that the FMAP under section 1905(b) for the state for the fiscal year shall be increased by 11.5 percentage points, with the sum not to exceed 100 percent, during the period that begins on October 1, 2019, and ends on September 30, 2020.
The eFMAP rates are used in the Children's Health Insurance Program under Title XXI, and in the Medicaid program for expenditures for medical assistance provided to certain children as described in sections 1905(u)(2) and 1905(u)(3) of the Act. There is no specific requirement to publish the eFMAP rates. We include them in this notice for the convenience of the states, and display both the eFMAP rates that would apply if section 2105(b) had not been amended by the HEALTHY KIDS Act (Table 1, Column 2) and the increased eFMAP rates as calculated pursuant to the amendments made by the HEALTHY KIDS Act (Table 1, Column 3), for comparison.
Fish and Wildlife Service, Interior.
Notice of availability; notice of receipt of permit application; request for public comments.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of several documents related to an incidental take permit (ITP) application under the Endangered Species Act (ESA). We have received an application from North Allegheny Wind, LLC (NAW) for a 25-year ITP for take of the federally endangered Indiana bat incidental to otherwise lawful activities associated with operation of its North Allegheny Wind Facility, an existing 35-turbine wind farm in Blair and Cambria Counties, Pennsylvania. NAW has proposed a conservation program to minimize and mitigate for the impacts of the incidental take as described in its Draft North Allegheny Wind Indiana Bat Habitat Conservation Plan (HCP). Pursuant to the ESA and the National Environmental Policy Act, we announce the availability of NAW's ITP application, including its HCP, and the Service's draft environmental assessment, for public review and comment. We provide this notice to seek comments from the public and Federal, Tribal, State, and local governments.
We will accept comments received or postmarked on or before December 28, 2018. Comments submitted electronically using
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We will post all comments on
We request that you send comments by only the methods described above.
Robert Anderson, by phone at 814-234-4090, x7447, or by mail at Pennsylvania Field Office, U.S. Fish and Wildlife Service, 110 Radnor Road, Suite 101, State College, PA 16801.
Section 9 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
North Allegheny Wind, LLC (NAW) is seeking a permit for the incidental take of the federally endangered Indiana bat (
The HCP provides on-site avoidance and minimization measures, which include turbine operational adjustments. The estimated level of Indiana bat take from the project is four Indiana bats and an estimated reproductive potential of 3.2 bats over the 25-year project duration. To provide a conservation benefit to the Indiana bat, NAW will fund and implement one or more of the following types of mitigation projects to meet the mitigation needs of the Indiana bat: Protection of a hibernaculum, as well as surrounding buffer land necessary to ensure that the protection of the hibernaculum is successful; Protection of land that functions as summer habitat for one or more maternity colonies; and protection of summer and/or swarming habitat near a hibernaculum.
The issuance of an ITP is a Federal action that triggers the need for compliance with NEPA (42 U.S.C. 4321
We will evaluate the plan and comments we receive to determine whether the permit application meets the requirements of section 10(a) of the ESA (16 U.S.C. 1531
The Service invites the public to comment on the proposed HCP and draft EA during a 30-day public comment period (see
We will post on
This notice is provided pursuant to section 10(c) of the ESA (16 U.S.C. 1531
THIS DOCUMENT WAS RECEIVED AT THE OFFICE OF THE FEDERAL REGISTER ON NOVEMBER 23, 2018.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, are publishing a draft list of the nonnative bird species that have been introduced by humans into the United States or U.S. territories and to which the Migratory Bird Treaty Act (MBTA) does not apply. The Migratory Bird Treaty Reform Act (MBTRA) of 2004 amends the MBTA by stating that the MBTA applies only to migratory bird species that are native to the United States or U.S. territories, and that a native migratory bird species is one that is present as a result of natural biological or ecological processes. The MBTRA requires that we publish a list of all nonnative, human-introduced bird species to which the MBTA does not apply. We published that list in 2005, and are starting the process to update it with this notice. This notice identifies those species that are not protected by the MBTA, even though they belong to biological families referred to in treaties that the MBTA implements, as their presence in the United States or U.S. territories is solely the result of intentional or unintentional human-assisted introductions. This notice presents a draft list of species that are not protected by the MBTA to reflect current taxonomy, to remove one species that no longer occurs in a protected family, and to remove one species as a result of new distributional records documenting its natural occurrence in the United States.
We will accept comments received or postmarked on or before January 28, 2019. Comments submitted electronically using the Federal eRulemaking Portal (see
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We request that you send comments only by the methods described above. We will post all comments on
The purpose of this notice is to provide the public with an opportunity to review and comment on a draft updated list of “all nonnative, human-introduced bird species to which the Migratory Bird Treaty Act (16 U.S.C. 703
This notice is strictly informational. It merely updates our list of the bird species to which the MBTA does not apply. The presence or absence of a species on this list has no legal effect. This list does not change the protections that any of these species might receive under such agreements as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; T.I.A.S. 8249), the Endangered Species Act of 1973 (16 U.S.C. 1531
For more information, refer to our notice published in the
The criteria remain the same as stated in our notice published on March 15, 2010, at 70 FR 12710
This notice presents a draft list of species that are not protected by the MBTA to reflect current taxonomy, to remove one species that no longer occurs in a protected family, and to remove one species as a result of new distributional records documenting its natural occurrence in the United States. The taxonomical updates are presented in the draft list below. Japanese Bush-Warbler (
We made this draft list as comprehensive as possible by including all nonnative, human-assisted species that belong to any of the families referred to in the treaties and whose occurrence(s) in the United States or U.S. territories have been documented in the scientific literature. It is not, however, an exhaustive list of all the nonnative species that could potentially appear in the United States or U.S. territories as a result of human assistance. New species of nonnative birds are being reported annually in the United States, and it is impossible to predict which species might appear in the near future.
The appearance of a species on this list does not preclude its addition to the list of migratory birds protected by the MBTA (50 CFR 10.13) at some later date should substantial evidence come to light confirming natural occurrence in the United States or U.S. territories. The 123 species on this list are arranged by family according to the American Ornithological Society (AOS) (1998, as amended and following taxonomy in the AOS 2017 supplement). Within families, species are arranged alphabetically by scientific name. Common and scientific names follow Clements et al. (2017); any names occurring differently in the AOS 2017 supplement are in parentheses.
We request comments or information on this draft list from other concerned governmental agencies, the scientific community, industry, or any other interested parties.
Please include sufficient information with your submission (such as electronic copies of scientific journal articles or other publications, preferably in English) to allow us to verify any scientific or commercial information you include.
You may submit your comments and materials concerning this draft list by one of the methods listed in
If you submit information via
Comments and materials we receive will be available for public inspection on
The author of this notice is Jo Anna Lutmerding, U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 5275 Leesburg Pike, Falls Church, VA 22041.
The authority for this notice is the Migratory Bird Treaty Reform Act of 2004 (Division E, Title I, Sec. 143 of the Consolidated Appropriations Act, 2005; Pub. L. 108-447), and the Migratory Bird Treaty Act (16 U.S.C. 703-712).
Fish and Wildlife Service, Interior.
Notice of receipt of a permit application; request for comments.
We, the U.S. Fish and Wildlife Service, have received an application for a permit to conduct activities intended to enhance the propagation and survival of endangered plant species under the Endangered Species Act of 1973, as amended. We invite the public and local, State, Tribal, and Federal agencies to comment on this application. Before issuing the requested permit, we will take into consideration any information that we receive during the public comment period.
We must receive your written comments on or before December 28, 2018.
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Colleen Henson, Recovery Permit Coordinator, Ecological Services, (503) 231-6131 (phone);
We, the U.S. Fish and Wildlife Service, invite the public to comment on an application for a permit under section 10(a)(1)(A) of the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA's definition of “take” includes such activities as pursuing, harassing, trapping, capturing, or collecting in addition to hunting, shooting, harming, wounding, or killing.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found in the Code of Federal Regulations at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit request are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing this permit. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to this application. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Written comments we receive become part of the administrative record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue a permit to the applicant listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice.
On October 31, 2018, the Bureau of Indian Affairs (BIA) approved the Quinault Indian Nation's (Tribe) leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into residential and business leases without further BIA approval.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street NW, MS-4642-MIB, Washington, DC 20240, at (202) 208-3615.
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into agricultural and business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious, or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72,440, 72,447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under Tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act.
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.”
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Quinault Indian Nation.
Bureau of Land Management, Interior.
Notice of intent.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Wyoming Buffalo Field Office intends to prepare a Supplemental Environmental Impact Statement (EIS) and potential amendment for the 2015 Buffalo Field Office Approved Resource Management Plan (RMP). The Supplemental EIS is in response to a United States District Court, District of Montana, opinion and order (Western Organization of Resource Councils, et al vs BLM). This notice announces the beginning of the scoping process to solicit public comments and identify issues presented in the opinion and order.
To ensure that we can adequately consider all comments, the
You may submit comments on issues, planning criteria, and resource information by any of the following methods:
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Thomas (Tom) Bills, RMP Supplemental EIS Project Manager; Telephone 307-684-1133; or at the above mailing address or website. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The BLM is preparing this Supplemental EIS in response to a United States District Court of Montana opinion and order (
In September 2015, the BLM approved the Record of Decision for Approved RMPs and Amendments in the Rocky Mountain Region, which included Wyoming's Buffalo Field Office. The 2015 Buffalo Approved RMP provides a single, comprehensive land use plan that guides management of BLM-administered lands and minerals in the Buffalo Field Office. The plan provides goals, objectives, land use allocations, and management direction for the BLM-administered surface and mineral estate based on the BLM's multiple use and sustained yield mission, unless otherwise specified by law (FLPMA Sec. 102(c), 43 U.S.C. 1701
On March 26, 2018, the U.S. District Court concluded: (1) NEPA requires the BLM to consider an alternative that would decrease the amount of coal potentially available for leasing, which requires updated coal screening that considers climate change impacts to assess the amount of recoverable coal available in the Approved RMP; (2) the BLM must supplement the Buffalo Final EIS with an analysis of the environmental consequences of downstream combustion of federal coal, oil, and gas open to development under the RMP; and (3) The BLM must provide additional justification and analysis of global warming potential over an appropriate planning period consistent with evolving science. The purpose of this public scoping process is to solicit public input that will influence the scope of the Buffalo Supplemental EIS with respect to the U.S. District Court's determinations.
There are currently 13 operating coal mines in the planning area. All are in Campbell County (part of the Antelope Mine is in Converse County). There are presently two proposed mining operations on existing Federal coal leases or on privately owned coal in the planning area. One of these proposed mining operations is located in Sheridan County. All of the existing or proposed mining operations are surface coal mines, using truck/shovel or dragline mining methods.
The 2015 Buffalo RMP relied on coal screening completed during a 2001 RMP update. The 2001 screening reviewed 567,200 acres in two areas identified as acceptable for potential coal leasing in the Buffalo Field Office (494,000 acres in Campbell County and 73,200 acres in Sheridan County), containing an estimated 50.25 billion tons of coal. Based on the update, the BLM determined that 63,600 acres containing more than 6.2 billion tons of coal are unsuitable for surface coal mining operations, while the remainder of the coal lands in these areas remains available for further consideration for coal leasing. The BLM completed and documented surface owner consultation. The BLM estimates about 26 billion tons of coal would be developed under the Approved RMP in the areas made available for coal leasing under the 2001 coal screening. Since 1985, about 10.8 billion tons of coal within the planning area either were leased or are under consideration for leasing. The BLM has projected that the areas it screened and deemed acceptable for leasing will meet the anticipated demand for coal reserves. The BLM determined a new coal screening is not necessary in the Buffalo Field Office because no new lands have been nominated for analysis since the previous screenings, but BLM Wyoming will analyze the downstream impacts of developing federal minerals.
The BLM requests that industry, state and local governments, and the public provide relevant coal resource data that can help inform this planning effort. Specifically, the BLM requests information on the development potential (
The purpose of this request is to ensure BLM Wyoming has sufficient information and data to consider a reasonable range of resource uses, management options, and alternatives for managing BLM-administered coal mineral estate. The BLM will use this information to complete the Supplemental EIS and formulate alternatives that identify areas acceptable for further leasing consideration.
Proprietary data marked as confidential may be submitted in response to this call for coal and other resource information. Please submit all proprietary information to the Buffalo Field Manager at the address listed above. The BLM will treat submissions marked as “Confidential” in accordance with the laws and regulations governing the confidentiality of such information.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, the BLM cannot guarantee that it will be able to do so.
43 CFR 1610.2(c) and 3420.1-2.
Bureau of Land Management, Interior.
Notice of intent.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM), Miles City Field Office, Miles City, Montana, intends to prepare a Supplemental Environmental Impact Statement (EIS) and potential amendment for the 2015 Miles City Field Office Approved Resource Management Plan (RMP). The Supplemental EIS is in response to a United States District Court, District of Montana, opinion and order (Western Organization of Resource Councils, et al vs BLM). This notice announces the beginning of the scoping process to solicit public comments and identify issues presented in the opinion and order.
To ensure that comments will be considered, the BLM must receive written comments by December 28, 2018. The BLM will announce a public scoping meeting through local news media, newsletters, e-Planning, and the BLM website
You may submit comments on issues, planning criteria, and resource information by any of the following methods:
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Amy Waring, Supplemental EIS Project Manager; telephone (406) 896-5095; email
The Supplemental EIS is in response to a United States Montana District court opinion and order (
In September 2015, the BLM approved the Record of Decision for the Approved RMPs and Amendments in the Rocky Mountain Region, which included the Montana Miles City Field Office. The 2015 Miles City Approved RMP provides a single, comprehensive land use plan that guides management of BLM-administered surface and mineral estate in the Miles City Field Office. The plan provides goals, objectives, land use allocations, and management direction for the BLM-administered surface and mineral estate based on multiple use and sustained yield, unless otherwise specified by law (FLPMA Sec. 102(c), 43 U.S.C. 1701
On March 26, 2018, the U.S. District Court concluded: (1) NEPA requires the BLM to consider an alternative that would decrease the amount of coal potentially available for leasing, which requires conducting new coal screening that considers climate change impacts to assess the amount of recoverable coal available in the Approved RMP, (2) The BLM must supplement the Miles City Final EIS with an analysis of the environmental consequences of downstream combustion of coal, oil, and gas open to development under the Approved RMP; and (3) The BLM must provide additional justification and analysis of global warming potential over an appropriate planning period consistent with evolving science.
The purpose of this public scoping process is to solicit public input that will influence the scope of the environmental analysis with respect to the three conclusions by the U.S. District Court.
There are currently five active coal mining operations in or adjacent to the planning area, four of which operate on Federal coal leases, and are administered by the BLM (Decker, Rosebud, Savage, and Spring Creek), and one mine (Absaloka) that operates entirely on two Indian coal leases. In addition, two additional mines are proposed, the Big Metal Mine (Indian reserves) and Otter Creek Mine (currently private reserves). The Miles City Field Office also authorizes a domestic coal license to a private individual in Fallon County for home heating.
The 2015 Approved RMP relied upon coal screening completed during two previous RMP revisions: Big Dry (1996) and Powder River (1985). These planning efforts identified approximately 68.38 billion tons of coal that are available for further consideration for coal leasing across the Miles City Field Office (62.20 billion tons in the Power River RMP and 6.18 billion tons of coal in the Big Dry RMP). A reasonable foreseeable development scenario (RFD) was developed for the Final EIS based upon the U.S. Energy Information Administration projections in order for specialists to analyze the potential effects related to Federal coal leasing. The RFD was based upon continued operations of the five existing mines, with no new mines being developed over the 20-year planning timeframe. The RFD did not consider leasing of the entire 68.38 billion tons of coal that may be available. The air quality analysis estimated annual emissions from the RFD estimate of 56.2 million tons of Federal and 26.8 million tons of non-Federal coal produced per year, based upon coal production limits prescribed in each associated Montana Air Quality Permit issued by the Montana Department of Environmental Quality for the five operating mines.
As defined in 43 CFR 3420.1-4, the four principal factors the BLM must consider for coal resource development during land use planning include:
1. Estimate coal development potential, and consider only those areas that have development potential for further consideration for leasing.
2. Apply the unsuitability criteria set out in 43 CFR subpart 3461 to the BLM-administered coal mineral estate to identify areas unsuitable for all, or certain stipulated methods of mining.
3. Consider multiple land use management conflicts which may eliminate coal deposits from further consideration for leasing to protect other resource values and land uses that are locally, regionally or nationally important or unique, that are not included in the unsuitability criteria.
4. Consult with qualified surface owners, as defined in 43 CFR 3400.0-5, whose lands overlie BLM-administered coal mineral estate to determine preference for or against mining by
The BLM requests that industry, State and local governments, and the public interested in coal management in the planning area provide the BLM relevant coal resource data that can help inform this project. Specifically, the BLM requests information on the development potential (
The purpose of this request is to assure that the planning effort has sufficient information and data to consider a reasonable range of resource uses, management options, and alternatives for management of the BLM-administered Federal coal mineral estate. The BLM will use this information to complete the Supplemental EIS and formulate alternatives that identify areas acceptable for further consideration for leasing.
Proprietary data marked as “Confidential” may be submitted in response to this request for coal and other resource information. Please submit all proprietary information submissions to the Montana/Dakotas State Director at the address listed above. The BLM will treat submissions marked as “Confidential” in accordance with the laws and regulations governing the confidentiality of such information.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request us to withhold your personal identifying information from public review, BLM cannot guarantee that it will be able to do so.
National Park Service, Interior.
Notice.
In accordance with the Federal Advisory Committee Act of 1972, the National Park Service is hereby giving notice that the National Park System Advisory Board (Board) will meet as noted below. This notice is being published less than 15 days prior to the meeting date due to unexpected administrative delays.
The meeting will be held on Wednesday, December 5, 2018, from 9:30 a.m. to 5:00 p.m. (EASTERN).
The meeting will be conducted in the Jefferson Room of the Courtyard Marriott Washington, DC/Foggy Bottom, 515 20th Street NW, Washington, DC 20006, telephone (202) 263-7435.
Shirley Sears, Office of Policy, National Park Service, 1849 C Street NW, Mail Stop 2659, Washington, DC 20240, telephone (202) 354-3955, or email
The Board has been established by authority of the Secretary of the Interior (Secretary) under 54 U.S.C. 100906, and is regulated by the Federal Advisory Committee Act.
The Board will convene at 9:30 a.m. and adjourn at 5:00 p.m. The board will have briefings on the priorities and programs of the National Park Service, including the National Historic Landmarks and National Natural Landmarks programs. The meeting will be open to the public. There will also be a public comment period. The final agenda will be posted to the Board's website prior to the meeting at
The Board also will permit attendees to address the Board, but may restrict the length of the presentations, as necessary, to allow the Board to complete its agenda within the allotted time.
Anyone may file with the Board a written statement concerning matters to be discussed.
Statements should be sent to
5 U.S.C. Appendix 2.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 10) of the presiding administrative law judge (“ALJ”), granting complainant's motion for leave to amend the complaint and Notice of Investigation to correct the name and/or address of two existing respondents.
Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Commission instituted this investigation on June 29, 2018, based on a complaint filed on behalf of Bose Corporation of Framingham, Massachusetts (“Bose”). 83 FR 30,776 (Jun. 29, 2018). The complaint alleges violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain earpiece devices and components thereof by reason of infringement of one or more of U.S. Patent Nos.: 9,036,852; 9,036,853; 9,042,590; 8,311,253; 8,249,287; and 9,398,364. The complaint further alleges that an industry in the United States exists as required by section 337. The Notice of Investigation named numerous respondents, including iHip of Edison, New Jersey; and SMARTOMI Products, Inc. (“Smartomi”) of Ontario, Canada. The Office of Unfair Import Investigations (“OUII”) was named as a party in this investigation.
On October 4, 2018, Bose filed a motion to amend the notice of investigation and for leave to file an amended complaint in order to correct the name and/or address of two existing respondents. Order No. 10 at 1 (Oct. 29, 2018). Specifically, Bose sought to correct the name of respondent iHip to Zeikos, Inc., and to correct the name of respondent Smartomi to V4ink, Inc. (“V4ink”).
On October 29, 2018, the ALJ issued the subject ID granting the motion.
The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, Operators' Licenses.
Submit comments by January 28, 2019. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0228 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2018-0228 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, Domestic Licensing of Source Material.
Submit comments by December 28, 2018.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0020), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0047 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, Domestic Licensing of Source Material. The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for revision of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, NRC Form 531, “Request for Taxpayer Identification Number.”
Submit comments by December 28, 2018.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0188), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email:
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0151 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, NRC Form 531, “Request for Taxpayer Identification Number.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering a request to amend licenses held by Exelon Generation Company, LLC (Exelon, the licensee) for the operation of Calvert Cliffs Nuclear Power Plant (Calvert Cliffs), Units 1 and 2; James A. FitzPatrick Nuclear Power Plant (FitzPatrick); and Nine Mile Point Nuclear Station (Nine Mile Point), Units 1 and 2 (the facilities). Amending these operating licenses would also affect the independent spent fuel storage installations (ISFSIs) at each facility. The proposed license amendments would revise the emergency response organization (ERO) positions identified in the emergency plan for each facility. The NRC is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) associated with the proposed license amendments.
The EA and FONSI referenced in this document are available on November 28, 2018.
Please refer to Docket ID NRC-2018-0262 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Blake A. Purnell, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1380; email:
The NRC is considering a request by Exelon to amend the following operating licenses: (1) Renewed Facility Operating License Nos. DPR-53 and DPR-69 for Calvert Cliffs, Units 1 and 2, respectively, located in Calvert County, Maryland; (2) Renewed Facility Operating License No. DPR-59 for FitzPatrick located in Oswego County, New York; and (3) Renewed Facility Operating License Nos. DPR-63 and NPF-69 for Nine Mile Point, Units 1 and 2, respectively, located in Oswego County, New York. Amending these operating licenses would also affect the Calvert Cliffs ISFSI (Renewed License No. SNM-2505) and the generally licensed FitzPatrick and Nine Mile Point ISFSIs, which are co-located with the reactor facilities.
In accordance with section 51.21 of title 10 of the
The proposed action would revise the ERO positions identified in the emergency plan for each facility, including the on-shift, minimum, and full-augmentation ERO staffing
The proposed action is in accordance with the licensee's application dated August 31, 2018 (ADAMS Package Accession No. ML18249A096).
Nuclear power plant owners, Federal agencies, and State and local officials work together to create a system for emergency preparedness and response that will serve the public in the unlikely event of an emergency. An effective emergency preparedness program decreases the likelihood of an initiating event at a nuclear power reactor proceeding to a severe accident. Emergency preparedness cannot affect the probability of the initiating event, but a high level of emergency preparedness increases the probability of accident mitigation if the initiating event proceeds beyond the need for initial operator actions.
Each licensee is required to establish an emergency plan to be implemented in the event of an accident, in accordance with 10 CFR 50.47 and appendix E to 10 CFR part 50. The emergency plan covers preparation for evacuation, sheltering, and other actions to protect individuals near plants in the event of an accident.
The NRC, as well as other Federal and State regulatory agencies, reviews emergency plans to ensure that they provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
In addition to this EA, the NRC is conducting a safety assessment of Exelon's proposed changes to the emergency plan for each facility. This safety review will be documented in a separate safety evaluation. The safety evaluation of the proposed changes to the emergency plans will determine whether there continues to be reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at Calvert Cliffs, FitzPatrick, or Nine Mile Point, in accordance with the standards of 10 CFR 50.47(b) and the requirements in appendix E to 10 CFR part 50.
The proposed action would align the emergency plans for the facilities with the NRC's alternative guidance for EROs provided in a June 12, 2018, letter to the Nuclear Energy Institute (ADAMS Accession No. ML18022A352). This alternative guidance is also included in draft Revision 2 to NUREG-0654/FEMA-REP-1, “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants” (ADAMS Accession Nos. ML14163A605 and ML17083A815). This change would provide Exelon with greater flexibility in staffing ERO positions. Additionally, this change reflects changes in NRC regulations and guidance, as well as advances in technologies and best practices, that have occurred since NUREG-0654/FEMA-REP-1, Revision 1, was published in 1980. The application indicates that Exelon provided the State of New York a draft of the license amendment request for FitzPatrick and Nine Mile Point, and that the State of New York had no concerns. The application also indicates that Exelon provided the State of Maryland a draft of the license amendment request for Calvert Cliffs, and that the State of Maryland found the proposed changes acceptable.
The proposed action consists of changes related to staffing positions, position descriptions, duties, and duty locations specified in the emergency plans for Calvert Cliffs, FitzPatrick, and Nine Mile Point. The on-shift, minimum, and full-augmentation ERO staffing requirements listed in the emergency plan would be revised. The revisions include eliminating ERO positions; adding ERO positions; changing position descriptions, duties, and duty locations; and relocating certain position descriptions to other parts of the emergency plan or to implementing procedures.
With regard to potential nonradiological environmental impacts, the proposed changes would have no impacts on land use or water resources, including terrestrial and aquatic biota, as they involve no new construction, ground disturbing activities, or modification of plant operational systems. There would be no changes to the quality or quantity of nonradiological effluents and no changes to the plants' National Pollutant Discharge Elimination System permits. The overall staffing levels are not expected to increase; therefore, worker vehicle air emissions are not expected to increase and established threshold emissions set forth in 40 CFR 93.153(b) for designated nonattainment or maintenance areas would not be exceeded. Since the proposed changes will not increase staffing levels and will not involve ground disturbing activities, modification of plant operation systems, or new construction, there would be no noticeable effect on socioeconomic conditions in the region, no environment justice impacts, and no impacts to historic and cultural resources from the proposed changes. Therefore, there would be no significant nonradiological environmental impacts associated with the proposed action.
With regard to potential radiological environmental impacts, if the NRC staff's safety review of the proposed changes to the licensee's emergency plans determines that the emergency plans would continue to meet the standards of 10 CFR 50.47(b) and the requirements in appendix E to 10 CFR part 50, then the proposed action would not increase the probability or consequences of radiological accidents. Additionally, the NRC staff has concluded that the proposed changes would have no radiological environmental impacts. There would be no change to the types or amounts of radioactive effluents that may be released and, therefore, no change in occupational or public radiation exposure from the proposed changes. Moreover, no changes would be made to plant buildings or the site property from the proposed changes. Therefore, there would be no significant radiological environmental impacts associated with the proposed action.
As an alternative to the proposed action, the NRC staff considered denial of the license amendment request (
There are no unresolved conflicts concerning alternative uses of available resources under the proposed action.
No additional agencies or persons were consulted regarding the environmental impact of the proposed action. However, in accordance with 10 CFR 50.91, the licensee provided copies of its application to the States of New York and Maryland, and the NRC staff will consult with these states prior to issuance of the amendments.
The licensee has requested license amendments pursuant to 10 CFR 50.54(q) to revise the ERO positions identified in the emergency plans for Calvert Cliffs, FitzPatrick, and Nine Mile Point by eliminating ERO positions; adding ERO positions; changing position descriptions, duties, and duty locations; and relocating certain position descriptions to other parts of the emergency plan or to implementing procedures. The NRC is considering issuing the requested amendments. The proposed action would not significantly affect plant safety, would not have a significant adverse effect on the probability of an accident occurring, and would not have any significant radiological or nonradiological impacts. The reason the environment would not be significantly affected is because the proposed changes are not expected to increase the overall staffing levels and do not involve any construction or modification of the specified facilities. This FONSI incorporates by reference the EA in Section II of this notice. Therefore, the NRC concludes that the proposed action would not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined there is no need to prepare an environmental impact statement for the proposed action.
Previous considerations regarding the environmental impacts of operating Calvert Cliffs, Units 1 and 2; Calvert Cliffs ISFSI; FitzPatrick; and Nine Mile Point, Units 1 and 2, in accordance with their renewed operating licenses, are described in the documents listed in the table in Section IV.
This FONSI and other related environmental documents may be examined, and/or copied for a fee, at the NRC's PDR, located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. Publicly-available records are also accessible online in the ADAMS Public Documents collection at
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
For the Nuclear Regulatory Commission.
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on the revision of a currently approved information collection, RI 20-126—Certification of Qualifying District of Columbia Service under Section 1905 of Public Law 111-84.
Comments are encouraged and will be accepted until January 28, 2019.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, Office of Personnel Management, 1900 E Street NW, Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent via electronic mail to
A copy of this information collection instrument with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW, Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) OPM is soliciting comments for this collection (OMB No. 3206-0268). We are particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other
RI 20-126 is used to certify that an employee performed certain service with the District of Columbia (DC) that qualifies under section 1905 of Public Law 111-84 for determining retirement eligibility. However, this service cannot be used in the computation of a retirement benefit.
U.S. Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on a revised information collection request (ICR), Notice of Change in Student's Status, RI 25-15.
Comments are encouraged and will be accepted until January 28, 2019.
Interested persons are invited to submit written comments on the proposed information collection to, Retirement Services, U.S. Office of Personnel Management, 1900 E Street, NW, Washington, DC 20415, Attention: Alberta Butler, Room 2347E, or sent by email to
A copy of this ICR with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW, Room 3316-L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent by email
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection (OMB No. 3206-0042). The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 25-15, Notice of Change in Student's Status, is used to collect sufficient information from adult children of deceased Federal employees or annuitants to assure that the child continues to be eligible for payments from OPM.
Office of Personnel Management.
30-Day notice and request for comments.
The Office of Personnel Management (OPM)'s Talent Acquisition and Workforce Shaping Center offers the general public and other Federal agencies the opportunity to comment on a request for reinstatement of a revised information collection for the Standard Form (SF) 15,
Comments are encouraged and will be accepted until December 28, 2018. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the revised information collection to Kimberly A. Holden, Deputy Associate Director for Talent Acquisition and Workforce Shaping, Employee Services, U.S. Office of Personnel Management, Room 6351D, 1900 E Street NW, Washington, DC 20415-9700; email
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The SF 15,
• Page 1, Item 9 is revised to reflect derived veterans' preference for parents.
• Page 2, Item A, 4th bullet is corrected to read that certification is of an expected discharge or release from active duty service in the armed forces under honorable conditions not later than 120 days after the date the certification is submitted.
• Page 2, Items C and F are corrected to reflect derived veterans' preference for parents.
• Several punctuation errors are corrected.
OPM received comments from two Federal agencies. One agency commented that the form has practical utility and is needed to properly adjudicate veterans' preference in case exam announcements. The same agency agreed with OPM's analysis and commented that the changes in the form are likely to provide small increases in the quality, utility and clarity of the information to be collected. This agency made three suggestions on the content of the form. First, on Page 2, Item F, the agency suggested changing “physician” to “health care provider” to be more in line with current regulations and to recognize that patients may be treated by someone other than a physician. OPM agrees and is changing “physician” to “licensed medical professional.”
Second, the agency asked to have the veteran's signature block added back on the form to certify that the applicant has read, understood, and is providing accurate information. OPM is not adopting this suggestion. Many veterans and other applicants claiming 10-point veterans' preference complete an electronic version of the SF 15 which can make signing the form difficult. After an offer of employment is made and/or at the time of appointment, an applicant signs the Optional Form (OF) 306,
Third, the agency suggested adding web links to the general veteran information from OPM to assist applicants. OPM is adopting this suggestion and adding the OPM web address in the instructions section on the form.
To minimize the burden of collection of information on veterans, another agency suggested adding a statement on page 2 to indicate that questions 1-7 only need to be answered if the person claiming preference is not the veteran. OPM is adopting this suggestion. This same agency suggested adding clarity to item C on page 2 to state that “all of the following” must be included in the documentation provided by spouses and parents. OPM is adopting this suggestion.
The SF 15 will continue to be available as a PDF fillable form for applicant use. The only acceptable version of this form will be as stated above, but consistent with current practice, the form may be submitted electronically or in hard copy. The SF 15 will be obtainable on the OPM website at
Office of Personnel Management.
60-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on the revision of a currently approved information collection, Application for Death Benefits under the Federal Employees Retirement System (SF 3104); and Documentation & Elections in Support of Application for Death Benefits When Deceased Was an Employee at the Time of Death (SF 3104B).
Comments are encouraged and will be accepted until January 28, 2019.
Interested persons are invited to submit written comments on the proposed information collection to Retirement Services, Office of Personnel Management, 1900 E Street NW, Washington, DC 20415, Attention: Alberta Butler, Room 2347-E, or sent via electronic mail to
A copy of this information collection instrument with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW, Room
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) OPM is soliciting comments for this collection (OMB No. 3206-0172). We are particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
SF 3104, Application for Death Benefits under the Federal Employees Retirement System, is needed to collect information so that OPM can pay death benefits to the survivor of Federal employees and annuitants. SF 3104B, Documentation in Support of Application for Death Benefits When Deceased Was an Employee at the Time of Death, is needed for deaths in service so that survivors can make the needed elections regarding health benefits, military service and payment of the death benefit.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its certificate of incorporation and bylaws to (1) harmonize certain provisions thereunder with similar provisions in the governing documents of the Exchange's national securities exchange affiliates and parent companies; and (2) make clarifying and updating changes. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to the amend the Amended and Restated Certificate of Incorporation of the Exchange (“Exchange Certificate”) and the Fifth Amended and Restated Bylaws of the Exchange (“Exchange Bylaws”) to (1) harmonize certain provisions thereunder with similar provisions in the governing documents of the Exchange's national securities exchange affiliates
The Exchange is owned by NYSE Group, Inc. (“NYSE Group”), which in turn is indirectly wholly owned by NYSE Holdings LLC (“NYSE Holdings”). NYSE Holdings is a wholly owned subsidiary of Intercontinental Holdings, Inc. (“ICE Holdings”), which is in turn wholly owned by the Intercontinental Exchange, Inc. (“ICE”).
The Exchange operates as a separate self-regulatory organization and has rules and membership rosters distinct from the rules and membership rosters of the other NYSE Group Exchanges. At the same time, however, the Exchange believes it is important for each of the NYSE Group Exchanges to have a consistent approach to corporate governance in certain matters, to simplify complexity and create greater
Because the Exchange is a Delaware corporation, most of the proposed changes are based on the governing documents of CHX, which is also a Delaware corporation, and NYSE Arca, which is a Delaware non-stock corporation, as the most comparable NYSE Group Exchanges.
The other changes described herein would become operative upon the Exchange Certificate becoming effective pursuant to its filing with the Secretary of State of the State of Delaware.
The proposed amendments described below are primarily based on the Second Amended and Restated Certificate of Incorporation of Chicago Stock Exchange, Inc. (“NYSE Chicago Certificate”), the Second Amended and Restated By-Laws of NYSE Chicago, Inc. (“NYSE Chicago Bylaws”),
The Exchange proposes to amend the Exchange Certificate as follows.
In a non-substantive change, the Exchange proposes to delete the sentence stating “[t]he Certificate of Incorporation was restated on June 29, 2006, December 30, 2011, and February 18, 2015.”
In a non-substantive change, the Exchange proposes to replace “NYSE NATIONAL, INC.” with “NYSE National, Inc.” in Article FIRST, to reflect that the legal name of the Exchange is not entirely in capital letters.
In a non-substantive change, the Exchange proposes to update the address of the registered office and name of the registered agent, as previously filed, and, because such address and office are no longer the initial address and office, delete the word “initial” from the provision. The Exchange also proposes to delete the “Certificate of Change of Registered Agent and/or Registered Office.”
Current paragraph (b) of Article FIFTH (Removal of Directors) provides that any director may be removed from office by a vote of the stockholders at any time with or without cause, except that Non-Affiliated Directors, as defined in the Exchange Bylaws, may only be removed for cause. The Exchange proposes to amend the definition of “cause” to provide that the list set forth in the provision is inclusive. The Exchange notes that the revised provision would be consistent with Article FIFTH(b) of the NYSE Chicago Certificate.
In a non-substantive change, the Exchange proposes to correct a typographical error in the title of Article EIGHTH, correcting “Liabilitv” with “Liability”.
In a non-substantive change, the Exchange proposes to amend Article NINTH to replace a reference to “Delaware” with “the State of Delaware.”
The Exchange proposes to update the date in the final paragraph.
The Exchange proposes to amend the Exchange Bylaws as follows.
In non-substantive changes, the Exchange proposes to delete the cover page and table of contents of the Exchange Bylaws, and amend the title to reflect that the proposed Exchange Bylaws are the “Sixth Amended and Restated Bylaws of NYSE National, Inc.”
In an administrative change, the Exchange proposes to add that that the stockholders may also fill any vacancy, and those vacancies resulting from removal from office by a vote of the stockholders for cause may be filled by a vote of the stockholders at the same meeting at which such removal occurs. Because, under Section 3.2(a), the stockholders determine the number of directors, a new directorship may be created. Accordingly, the Exchange proposes to add to Section 3.6(a)(i) that any newly created directorship will be filled with a person who satisfies the classification associated with the seat.
The first two sentences of the amended paragraph would be as follows (additions
Notwithstanding any provision herein to the contrary, any vacancy in the Board, however occurring, including a vacancy resulting from an increase in the number of the directors, may be filled
The change would be consistent with clause (ii) of Article II, Section 5 of the NYSE Chicago Bylaws, which was amended at the time of its acquisition by ICE.
In a non-substantive change, the Exchange proposes to amend clause (iii) to replace a reference to “Delaware” with “the State of Delaware.”
Paragraph (b) of Section 3.10 requires the person calling a special meeting to fix the time and place at which the meeting will be held, and deems notice to be given five business days after deposit in the United States mail. In an administrative change, the Exchange proposes to:
• Eliminate the requirement that the person calling the special meeting fix the time and place of the meeting, as Article III, Section 3.8 already addresses the place and mode of Board meetings;
• state that notice may be given by written, electronic or telephonic means; and
• reduce the period for deemed notice of mailed notice from five to two business days.
The changes would be consistent with Article II, Section 9(b) of the NYSE Chicago Bylaws.
• In Section 3.11, the Exchange proposes to clarify that the proposed quorum requirement would apply “[e]xcept as otherwise required by law”
• In Section 3.14, the Exchange proposes to replace “restricted by statute” with “provided by law.”
The change to add an exception to Section 3.11 would allow the written notice to be consistent with both applicable law and the Exchange Bylaws, should applicable law set forth specific requirements that differ from the Bylaw provision. The Exchange proposes to change “statute” to “law,” as the latter is a broader term, which includes non-statutory law, such as common law. The changes would be consistent with the NYSE Chicago Bylaws.
• The Exchange proposes to add “[e]xcept as otherwise provided by law,” before the sentences in Sections 4.1 and 4.2 that set forth the written notice requirements.
• In Section 4.4, the Exchange proposes to replace “statute” with “law” in paragraph (a) and “Statute” with “General Corporation Law of the State of Delaware” in paragraph (b).
The changes would be consistent with the NYSE Chicago Bylaws.
Current Article VII includes provisions related to indemnification by the Exchange. As a wholly-owned subsidiary of ICE, the Exchange believes it appropriate to harmonize the Exchange's indemnification provisions with those of ICE and the Exchange's intermediate holding company, ICE Holdings.
Accordingly, the Exchange proposes to delete the text of Section 7.1 (Indemnification) in its entirety and replace it with proposed text that is substantially similar to the CHX, ICE and ICE Holdings provisions, with the exception of changes to be consistent with the Exchange Bylaws' terminology.
(a) The Exchange shall, to the fullest extent permitted by law, as those laws may be amended and supplemented from time to time, indemnify any director or officer made, or threatened to be made, a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of being a director or officer of the Exchange or a predecessor corporation or, at the Exchange's request, a director, officer, partner, member, employee or agent of another corporation or other entity; provided, however, that the Exchange shall indemnify any director or officer in connection with a proceeding initiated by such person only if such proceeding was authorized in advance by the Board of Directors of the Exchange. The indemnification provided for in this Section 7.1 shall: (i) Not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement or vote of stockholders or disinterested directors or otherwise, both as to action in their official capacities and as to action in another capacity while holding such office; (ii) continue as to a person who has ceased to be a director or officer; and (iii) inure to the benefit of the heirs, executors and administrators of an indemnified person.
(b) Expenses incurred by any such person in defending a civil or criminal action, suit or proceeding by reason of the fact that he is or was a director or officer of the Exchange (or was serving at the Exchange's request as a director, officer, partner, member, employee or agent of another corporation or other entity) shall be paid by the Exchange in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Exchange as authorized by law. Notwithstanding the foregoing, the Exchange shall not be required to advance such expenses to a person who is a party to an action, suit or proceeding brought by the Exchange and approved by a majority of the Board of Directors of the Exchange that alleges willful misappropriation of corporate assets by such person, disclosure of confidential information in violation of such person's fiduciary or contractual obligations to the Exchange or any other willful and deliberate breach in bad faith of such person's duty to the Exchange or its stockholders.
(c) The foregoing provisions of this Section 7.1 shall be deemed to be a contract between the Exchange and each director or officer who serves in such capacity at any time while this bylaw is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts. The rights provided to any person by this bylaw shall be enforceable against the Exchange by such person, who shall be presumed to have relied upon it in serving or continuing to serve as a director or officer or in such other capacity as provided above.
(d) The Board of Directors in its discretion shall have power on behalf of the Exchange to indemnify any person, other than a director or officer, made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person, or his or her testator or intestate, is or was an officer, employee or agent of the Exchange or, at the Exchange's request, is or was serving as a director, officer, partner, member, employee or agent of another corporation or other entity.
(e) To assure indemnification under this Section 7.1 of all directors, officers, employees and agents who are determined by the Exchange or otherwise to be or to have been “fiduciaries” of any employee benefit plan of the Exchange that may exist from time to time, Section 145 of the Delaware General Corporation Law shall, for the purposes of this Section 7.1, be interpreted as follows: An “other enterprise” shall be deemed to include such an employee benefit plan, including without limitation, any plan of the Exchange that is governed by the Act of Congress entitled “Employee Retirement Income Security Act of 1974,” as amended from time to time; the Exchange shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Exchange also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to such Act of Congress shall be deemed “fines.”
Article XI (General Provisions)
The Exchange believes that permitting the Secretary of the Exchange to act on behalf of the Exchange pursuant to proposed Section 4 is appropriate given that the Secretary is frequently tasked to execute the Exchange's actions, especially as it relates to corporate governance. Under Section 11.4, the Board may constitute any officer of the Exchange, which includes the Secretary, to vote the stock of any subsidiary of the Exchange. The Board has approved the proposed changes to the Bylaws, including the proposed changes to Section 11.4. By approving the proposed changes to Section 11.4, the Board granted the Secretary the authority described therein. Moreover, proposed Section 11.4 would continue to permit the Board to revoke such voting power or constitute another officer with such voting power. The change would be consistent with Article X, Section 4 of the NYSE Chicago Bylaws.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act,
The Exchange believes that the proposed amendments to harmonize certain provisions of the Exchange Certificate and Bylaws with similar provisions of the governing documents of other NYSE Group Exchanges, ICE and ICE Holdings would contribute to the orderly operation of the Exchange and would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Exchange Act and comply with the provisions of the Exchange Act by its members and persons associated with members. For example, the proposed changes would create greater conformity between the Exchange's provisions relating to stockholders, officers, and stock certificates and those of its affiliates, particularly CHX and NYSE Arca. The Exchange believes that such conformity would streamline the NYSE Group Exchanges' corporate processes, create more equivalent governance processes among them, and also provide clarity to the Exchange's members, which is beneficial to both investors and the public interest. At the same time, the Exchange will continue to operate as a separate self-regulatory organization and to have rules and membership rosters distinct from the rules and membership rosters of the other NYSE Group Exchanges.
The Exchange also believes that the greater consistency among the governing documents of the NYSE Group Exchanges, ICE and ICE Holdings would promote the maintenance of a fair and orderly market, the protection of investors and the protection of the public interest. Indeed, the proposed amendments would make the corporate requirements and administrative processes relating to the Board, Board committees, officers, stockholders, and other corporate matters more similar to those of the NYSE Group Exchanges, in particular CHX and NYSE Arca, which have been established as fair and designed to protect investors and the public interest.
The proposed amendments to clarify the meaning of certain provisions of the Exchange Certificate and the Exchange Bylaws, to better comport certain provisions with the DGCL and to effect non-substantive changes would facilitate the Exchange's continued compliance with the Exchange Certificate and Bylaws and applicable law, which would further enable the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act and to comply, and to enforce compliance by its exchange members and persons associated with its exchange members, with the provisions of the Exchange Act, the rules and regulations thereunder, and the rules of the Exchange. Such amendments would also remove impediments to and perfects the mechanism of a free and open market by removing confusion that may result from corporate governance provisions that are either unclear or inconsistent with the governing law.
The Exchange also believes that the proposed amendments would remove impediments to and perfect the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the governing documents. The Exchange further believes that the proposed amendments would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with the corporate governance and administration of the Exchange.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before December 28, 2018 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Jennifer Quintana by emailing
44 U.S.C. 3501
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before December 28, 2018 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Jennifer Quintana by emailing
In compliance with the court's order, BEP intends to meet individually with blind and visually impaired persons and request their feedback about tactile features that BEP is considering for possible incorporation into the next U.S. paper currency redesign. BEP employees will attend national conventions and conferences for disabled persons. At those gatherings, BEP employees will invite blind and visually impaired persons to provide feedback about certain tactile features being considered for inclusion in future United States currency paper designs.
44 U.S.C. 3501
Office of Acquisition and Logistics, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Office of Acquisition and Logistics, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before December 28, 2018.
Submit written comments on the collection of information through
Rafael Taylor, Procurement Policy and Warrant Management Service (003A2A), Department of Veterans Affairs, 425 I Street NW, Washington, DC 20001, (202) 382-2787 or email
• Replace both existing VA Form 10-6131 (Daily Log (Contract Progress Report—Formal Contract)) and VA Form 10-6001a (Contract Progress Report) with one new form, which combines the intended purpose for VA Form 10-6131 and VA Form 10-6001a. The new combined form would now read: “VA Form 10101, Contractor Production Report.”
• Renumber VA Form 10-6298 Architect-Engineer Fee Proposal, to “VA Form 6298,” and revise the content in the form with updated thresholds and FAR citations.
The above proposed revisions do not change the currently approved burden hours. The actual VA Form 10101 and VA Form 6298 can be located at VA Forms website
The Department of Veterans Affairs, Office of Construction and Facilities Management (CFM), manages a multimillion-dollar construction program that involves the design and construction of medical centers, and other VA facilities including building improvements and conversions. The actual construction work is contracted out to private construction firms.
VA Form 6298 (formerly 10-6298), Architect-Engineer Fee Proposal: The use of this form is mandatory for obtaining the proposal and supporting cost or pricing data from the contractor and subcontractor in the negotiation of all architect-engineer contracts for design services when the contract price is estimated to be $50,000 or more. It is also used in obtaining proposals and supporting cost or pricing data for architect-engineer services for research study, seismic study, master planning study, construction management and other related services contracts. A Contractor Production Report is also used, but supplemented or modified as needed for the particular project type. (VA Acquisition Regulation (VAAR) 836.606-71, Architect-engineer's proposal, and VAAR 853.236-70.)
VA Form 10101, Contractor Production Report (formerly VA Form 10-6131), Daily Log—Formal Contract, and VA Form 10-6001a, Contract Progress Report, depending on the size of the contract: Is used to record the data necessary to ensure the contractor provides sufficient labor and materials to accomplish the contract work. Contractors are required to guarantee the performance of the work necessary to complete the project. VAAR 852.236-79 details what needs to be addressed by the contractor on the Contractor Production Report. Failure to receive information from the Contractor Production Report could result in a claim for non-performance and construction delays against the Government if the Government were unable to collect this information to administer the contract.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary:
Federal Housing Finance Agency.
Final rule.
The Federal Housing Finance Agency (FHFA or Agency) is amending its regulation addressing requirements for the Federal Home Loan Banks' (Banks) Affordable Housing Program (AHP or Program). The final rule amends the regulation to: Provide the Banks additional authority to allocate their AHP funds; authorize the Banks to establish separate competitive funds that target specific affordable housing needs in their districts; provide the Banks additional flexibility in designing their project selection scoring systems to address affordable housing needs in their districts; remove the requirement for retention agreements for owner-occupied units where the AHP subsidy is used solely for rehabilitation; provide for a calculation of household subsidy repayment amount that prioritizes return of the household's investment in the housing to the household; reduce administrative burdens related to calculating and obtaining household subsidy repayments based on net proceeds of the sale of a home; further align certain project monitoring requirements with those of other federal government funding programs; clarify the requirements for remediating AHP noncompliance; clarify certain operational requirements; and streamline and reorganize the regulation.
Ted Wartell, Manager, Office of Housing and Community Investment, 202-649-3157,
Section 1291.2 of the final rule provides generally, that through December 31, 2020, a Bank may comply with either the AHP regulation in effect immediately prior to this final rule's effective date, or this final rule. On and after January 1, 2021, a Bank must comply with this final rule. However, for the owner-occupied retention agreement requirements in § 1291.15(a)(7), the final rule provides that through December 31, 2019, a Bank may comply with either § 1291.9(a)(7) of the AHP regulation in effect immediately prior to this final rule's effective date, or § 1291.15(a)(7) of this final rule. On and after January 1, 2020, a Bank must comply with § 1291.15(a)(7) of the final rule. Regarding proxies for determining a subsequent purchaser's income, the final rule provides that a Bank shall comply with § 1291.15(a)(7)(ii)(B) of the final rule on the date set forth in the FHFA guidance on proxies referenced therein.
Similarly, § 1290.8 of the final rule provides that through December 31, 2020, a Bank must comply with either prior part 1290 (Community Support Requirements regulation) or this part 1290. On and after January 1, 2021, a Bank must comply with this part 1290.
The proposed rule did not address effective or compliance dates. The Banks requested that the final rule not become effective for at least two years. They stressed that the proposed substantive changes to the regulation, especially the proposed outcome-based scoring framework, would require extensive changes to their existing scoring, information and reporting systems, as well as education and training of Bank staff, members, and potential project sponsors. Bank staff indicated that they would need to consult with their Bank Advisory Councils, boards of directors, and board committees on changes to their Program, including systems and procedures. They would need to seek approval by their boards of changes to their policies for their General Funds and Homeownership Set-Aside Programs, and for establishment of Targeted Funds, along with related changes to their AHP Implementation Plans and Targeted Community Lending Plans (TCLPs). The Banks typically hold their AHP funding rounds in the spring or summer of each year, and would need sufficient time to publish their revised AHP Implementation Plans and TCLPs, and announce their AHP funding allocations, well in advance of the start of that calendar year.
In view of the publication of the final rule late in 2018, FHFA recognizes that it may not be feasible for the Banks to complete all of the above actions in time for implementation of revised Programs for 2019 or 2020, even though the final rule does not adopt the proposed outcome-based scoring framework and instead adopts a scoring framework more similar to the existing scoring requirements of the Competitive Application Program. A January 1, 2021 compliance date for the final rule, thus, is warranted. However, there are certain changes in the final rule that will benefit households without requiring significant changes to the Banks' information systems and, therefore, can be implemented more quickly. In particular, the final rule establishes a compliance date of January 1, 2020 by which the Banks must implement the new owner-occupied retention agreement provisions in § 1291.15(a)(7), including the requirement to calculate AHP subsidy repayment based on net proceeds and household's investment (§ 1291.15(a)(7)(v)), the
Because some Banks may find it feasible to implement certain provisions of the final rule before the applicable compliance dates, such as the provisions benefiting households, provisions easing operational burdens, or provisions for the establishment of Targeted Funds, the final rule provides that a Bank may choose to comply with any provision of the final rule before the applicable compliance date. A Bank that chooses to comply with a specific provision before the applicable compliance date must also comply with all other provisions related to that specific provision in part 1291 and § 1290.6. For example, if a Bank decides
The Federal Home Loan Bank Act (Bank Act) requires each Bank to establish a Program to provide subsidies for long-term, low- and moderate-income, owner-occupied and affordable rental housing. Each Bank is required to allocate annually 10 percent of its prior year's net income to fund its Program to help subsidize the purchase, construction, and rehabilitation of affordable rental and owner-occupied housing. Homeowners and homebuyers receiving AHP subsidies must be low- or moderate-income (incomes at or below 80 percent of area median income (AMI)). For rental housing, at least 20 percent of the units must be occupied by very low-income households (incomes at or below 50 percent of AMI) and must be affordable (rents charged do not exceed 30 percent of income).
The current AHP regulation authorizes the Banks to establish and administer two programs for awarding AHP subsidies: a mandatory Competitive Application Program (referred to in the proposed and final rules as the “General Fund”); and an optional Homeownership Set-Aside Program.
Under the Competitive Application Program, members apply to the Banks for AHP subsidies on behalf of project sponsors, which are typically nonprofit affordable housing developers, but may include for-profit organizations. The Banks are required to develop and implement a scoring system subject to requirements in the regulation, which serves as a mechanism for evaluating and selecting the project applications to receive AHP subsidies. Under the Homeownership Set-Aside Program, members apply to the Banks for grants, which are provided to low- or moderate-income homebuyers or homeowners for purchasing or rehabilitating homes.
The AHP has played an important role in facilitating the Banks' support of their members' efforts to meet the affordable housing needs of their communities. Between 1990 and 2017, the Banks awarded approximately $5.8 billion in AHP subsidies to assist the financing of over 865,000 affordable housing units. AHP subsidies have proven particularly effective in leveraging additional public and private resources for funding affordable housing projects that present underwriting challenges, such as projects for homeless households and special needs populations. For example, project sponsors have used AHP funds in conjunction with a number of different federal and state funding sources, including Low-Income Housing Tax Credits (LIHTC or tax credits), to develop rental housing for very low-income households. For 2018, the Banks' combined required annual AHP contribution is approximately $384,310,000.
FHFA and one of its predecessor agencies, the Federal Housing Finance Board (Finance Board), have engaged in numerous rulemakings over the years to revise, clarify, and streamline the AHP requirements as the Program has evolved and housing markets have changed. Successive rulemakings progressively devolved specific AHP application approval and governance authorities from the Finance Board to the Banks in order to enhance the ability of the Banks to address specific affordable housing needs in their respective districts.
The genesis of the current AHP rulemaking was the Notice of Regulatory Review published in the
In response to the Banks' recommendations, FHFA undertook a comprehensive review of the AHP regulation, including AHP issues on which FHFA had provided regulatory guidance. To further inform the review, FHFA conducted outreach with the Banks and a wide range of AHP stakeholders. The Banks and stakeholders uniformly expressed support for the AHP, and noted the critical role it plays in affordable housing initiatives throughout the country and its longstanding reputation as a well-managed program. At the same time, the Banks and stakeholders offered a number of specific recommendations to improve the operation of the AHP. The recommendations were directed largely at: (1) Expanding the Banks' authority to allocate their AHP funds; (2) providing the Banks authority to devise their own project selection methods, including the use of non-competitive processes; (3) clarifying the requirements for determining a project's need for AHP subsidy; (4) aligning the project monitoring requirements with those of other major funding sources; (5) clarifying the Banks' authorities to resolve project noncompliance; (6) clarifying certain operational requirements; and (7) codifying FHFA regulatory guidance in the regulation. Based on FHFA's analyses of the recommendations and its review of the Program, FHFA published a proposed rule to amend the AHP regulation, which is discussed below.
On March 14, 2018, FHFA published a Notice of Proposed Rulemaking (NPRM or proposed rule) in the
The NPRM also proposed additional options for the Banks to allocate their total annual AHP contributions. Each Bank would have been required to allocate at least 50 percent of its total annual AHP contribution to its General Fund, down from the current 65 percent. Each Bank also would have been authorized to allocate up to 40 percent of its required annual AHP contribution to a maximum of three “Targeted Funds,” a new type of competitive application fund under the AHP, to address specific affordable housing needs within its district, subject to a phase-in period. In addition, the proposed rule would have increased the maximum percentage of a Bank's total annual AHP contribution that could be allocated to its Homeownership Set-Aside Program from 35 to 40 percent, with the existing alternate threshold of $4.5 million retained.
The proposed rule also would have eliminated the current requirement for an owner-occupied unit retention agreement, under which AHP-assisted households must repay AHP subsidy to the Bank under certain circumstances if they sell or refinance their homes during the AHP five-year retention period. The NPRM discussed that this would ease the administrative burdens on the Banks of recovering subsidy repayments from households, and enhance households' ability to build wealth, which appear to outweigh the retention agreements' potential to deter rare instances of flipping.
In addition, the proposed rule would streamline the responsibilities of the parties involved in monitoring projects for compliance with AHP income targeting and rent requirements by aligning the AHP project monitoring requirements with those of certain other government funding programs. For example, the proposal would remove certain back-up documentation requirements for the initial monitoring of AHP projects that have received LIHTC, and for initial and long-term monitoring of AHP projects that have received funding from certain other federal government programs.
In addition, the proposed rule would clarify a number of operational responsibilities. For example, the proposed rule would clarify the process and responsibilities of the various parties for remediating AHP noncompliance. The proposed rule also would have clarified the process for determining a project's need for AHP subsidy.
Finally, the proposed rule would streamline and reorganize the regulation to enhance its utility and readability.
The NPRM initially provided the public 60 days to submit comments on the proposed rule. The Agency received numerous requests from commenters to extend the comment period by an additional 30 days. FHFA also identified an error in the calculation of the outcome requirement in the proposed rule text and related preamble discussion. In response to the requests for an extension of the comment period and to correct the error in the outcome calculation and encourage comments on the corrected calculation, FHFA published a notice in the
FHFA received 394 comment letters in response to the proposed rule. Of those letters, 251 expressed unique comments and recommendations, with the remaining 143 being form letters or requests to extend the original 60-day comment period. The Presidents of the eleven Banks submitted a joint comment letter. Nine Banks also submitted individual comment letters. FHFA received 16 comment letters from the Banks' boards of directors, Affordable Housing Advisory Councils (Bank Advisory Councils), and Community Investment Officers (CIOs). Eighteen members of Congress representing the states of Arkansas, Louisiana, Mississippi, New Mexico, and Texas co-signed a comment letter. A member of Congress representing the state of New Jersey also submitted a comment letter. FHFA received 99 letters from trade associations, nonprofit organizations, and state and local government organizations. Lenders such as banks, credit unions, and Community Development Financial Institutions (CDFIs) submitted 50 comment letters. Nonprofit and for-profit developers submitted 204 comment letters. Individuals submitted the remaining 13 comment letters.
FHFA also held a number of webinars and meetings with Bank representatives and stakeholders to describe the content of the proposed rule, discuss issues raised by the proposed rule, and obtain clarifications of specific comments made in the letters.
Six proposals received the most comments: The outcome-based approach for project selection; the authority for the Banks to establish Targeted Funds; the increase in the maximum permissible annual funding allocation to a Bank's Homeownership Set-Aside Program from 35 to 40 percent; the removal of the requirement for owner-occupied retention agreements; a clarification of the “cure-first” requirement for project noncompliance; and the responsibility of the full board of directors to approve strategic AHP decisions. The comments on these six proposals and FHFA's decisions in the final rule are discussed in Section III., below. Comments on other provisions of the proposed rule are discussed under each applicable provision in the Section-by-Section Analysis in Section IV., below.
• At least 5 points each to two priorities derived from the statute (combined 10 points minimum);
• At least 5 points each to four regulatory priorities addressing specific housing needs set forth in the regulation, and at least 20 points for the regulatory priority for income targeting (a combined 40 points minimum for the five regulatory priorities).
• The remaining maximum of 50 points to one or more housing needs specified under the first Bank district priority (from 12 eligible housing needs specified in the regulation, and to one or more housing needs in the Banks' districts selected by the Banks under the second Bank district priority (with at least 5 points allocated to each Priority).
In addition, the proposed outcome requirements would have included four regulatory priorities, with specified eligible housing needs included under each of the regulatory priorities, for: (1) Very low-income targeting for rental units; (2) underserved communities and populations; (3) creating economic opportunity; and (4) affordable housing preservation. Each Bank would have been required to ensure that at least 55 percent of all rental units in rental projects receiving AHP awards were targeted to very low-income households (households with incomes at or below 50 percent AMI). In addition, each Bank would have been required to award at least 55 percent of its total AHP funds to projects, in the aggregate, meeting at least two of the three other regulatory priorities.
The proposed rule would have permitted the Banks to re-rank the order of applications, by replacing a higher scoring application that does not contribute to meeting the outcome requirements with a lower scoring project that does, in order to enable the Banks to meet the outcome requirements. If a Bank failed to fulfill the outcome requirements, FHFA would have the authority to require the Bank to develop and implement a housing plan for addressing the Bank's noncompliance, or to order the Bank to reimburse its AHP Fund in the amount of funds necessary to address the dollar shortfall.
However, most of the commenters expressed concern that the proposal would or might restrict the Banks' and members' ability to address the particular housing needs of local communities, which some of these commenters described as a “hallmark” of the AHP, in favor of a national housing needs focus. Some Bank Advisory Councils also expressed concern that the proposal would diminish the role of the Bank Advisory Councils in identifying the affordable housing needs of the districts. Several commenters focused on the proposed percentages that the Banks would be required to meet under the outcome requirements, raising concerns that requiring mathematical calculations of dollar amounts and numbers of rental units would increase the Program's complexity. Many commenters, including the Banks, a Bank Advisory Council, and a trade association, strongly objected to the proposal to permit the Banks to re-rank the order of scored applications as a way to meet the proposed outcome requirements. Commenters expressed concern that the ability to re-rank scored applications would undermine the integrity, predictability, simplicity, and transparency of the AHP, and deter project sponsors from submitting applications to the Program.
Numerous commenters, including the Banks, a trade association, and lenders, strongly opposed the proposed enforcement provisions for Bank noncompliance with the proposed outcome requirements. Commenters stated that requiring a Bank to reimburse its AHP Fund in the amount of any dollar shortfall would impose a “penalty” and “undue and severe punishment” on the Bank. A Bank noted that requiring such reimbursement would result in a Bank contributing annually more than the statutorily required 10 percent of its net income to its AHP for the particular year. Commenters also suggested that a reimbursement requirement would lead to reductions in the diversity of the projects awarded AHP funds, as the Banks would select conventional and unchallenging housing needs as part of their scoring systems in order to ensure fulfillment of the proposed outcome requirements and avoid having to reimburse their AHP Funds.
The eleven Banks jointly submitted a proposal for project selection based on the current regulatory scoring system, with certain changes to the regulatory priorities and required minimum allocations of scoring points. The Banks' proposal is discussed further below under § 1291.26 (Scoring Criteria for the General Fund) in Section IV.
FHFA's analyses of the Banks' awards in recent years indicate that most, if not all, of the Banks would have readily met the proposed outcome requirements, especially with the correction to the calculation of the proposed outcome requirement for the three regulatory priorities, while having increased flexibility to target district housing needs. However, the Banks and other commenters expressed concern about the proposed outcome requirements, especially the prospect of accountability for noncompliance with the outcome requirements and the potential to have to reimburse their AHP Funds for any dollar shortfall. Because FHFA has decided not to implement the proposed outcome-based approach, the proposed enforcement provisions for Bank noncompliance with the outcome requirements (proposed §§ 1291.48 and 1291.49) are moot and, therefore, not adopted in the final rule.
The Agency finds the Banks' proposal for project selection, which is based on both the current scoring system and specific regulatory priorities in the proposed rule, to be a reasonable approach, subject to certain changes to achieve specific policy objectives. The revised scoring-based framework in the final rule is discussed in Section IV. below, under § 1291.25 (Scoring Methodologies), and § 1291.26 (Scoring Criteria for the General Fund).
The final rule requires the Banks to adopt and implement parameters to ensure that each Targeted Fund is designed to receive a sufficient number of applicants for the amount of AHP funds allocated to the Targeted Fund such that administration of each Targeted Fund results in a robust competitive scoring process. These parameters include requirements that a Bank must specify the particular type of affordable housing needs the Bank plans to address through any Targeted Funds in its TCLP, and that a Bank must publish its TCLP at least 90 days before the first day that applications may be submitted for that Targeted Fund (unless the Targeted Fund is specifically targeted to address a federal or state-declared disaster). Further, the final rule requires a Bank to establish a minimum of three scoring criteria for each Targeted Fund that assist the Bank in selecting the projects that meet the specified affordable housing needs to be addressed by the Targeted Fund. In addition, the final rule provides that a Bank may not allocate more than 50 points to any one scoring criterion. The final rule also implements a phase-in period for establishing Targeted Funds. A Bank would be limited initially to establishing one Targeted Fund to which it could allocate up to 20 percent of its total annual AHP funds. In the second year, the Bank could establish two Targeted Funds with a maximum allocation of 30 percent, and in the third year three Targeted Funds with a maximum allocation of 40 percent.
Several commenters, including the Banks, Bank Advisory Councils, a trade association, and a policy organization, supported the proposed maximum 40 percent funding allocation for Targeted Funds. In contrast, a nonprofit advocacy organization and a government entity expressed concern that the proposal would lead to a decrease in funding for affordable rental housing. A nonprofit intermediary supported Targeted Funds, but recommended that the Banks be permitted to allocate an unspecified percentage that is less than 40 percent to their Targeted Funds to ensure that a majority of the Banks' AHP subsidies remain available under the General Fund to address a broad spectrum of affordable housing needs within each district. A nonprofit developer asserted that Targeted Funds would compel project sponsors to apply for AHP subsidy under both the General Fund and the Targeted Fund, resulting in costly compliance and administration expenses for the Banks, members, and project sponsors.
The Banks expressed concern that the proposed regulatory language requiring each Bank to adopt and implement controls to ensure that each Targeted Fund receives sufficient numbers of applicants for the amount of AHP funds
FHFA also considered the Banks' concerns about the proposed language that each Targeted Fund have controls for ensuring that it is designed to receive sufficient numbers of applicants for the amount of AHP funds allocated to the Targeted Fund. The requirement that the Targeted Fund be
FHFA also acknowledges the commenter's concern that project sponsors may feel compelled to submit applications for the same project to both the General Fund and any applicable Targeted Fund at a Bank. While the final rule does not prohibit applicants from applying to both Funds in the same year, FHFA does not anticipate this becoming a significant problem for the Banks and project sponsors due to the limited scope of Targeted Funds, and the time involved in completing multiple applications. The specific requirements in the final rule for establishing and administering Targeted Funds are discussed under § 1291.20(b)(1) in Section IV., below.
FHFA acknowledged that the increase could result in a smaller amount of funds allocated by the Banks to their competitive application programs, which could result in reduced funding for rental projects. However, FHFA considered the proposal to be reasonable given the significant demand for set-aside funds and stakeholder requests that the Agency provide the Banks additional flexibility to target specific housing needs in their districts.
Numerous nonprofit organizations opposed the proposed increase on the basis that it would effectively reduce AHP funding for rental housing. Commenters noted the important role the AHP plays in supporting the preservation and expansion of rental properties for very low-income and extremely low-income households. A nonprofit organization cited data derived from the American Community Survey describing the Nation's significant shortage of affordable rental housing, including for extremely low-income households (incomes of less than 30 percent of AMI or less than the federal poverty line). Another nonprofit organization acknowledged the importance of promoting homeownership for lower income households, but opposed the proposed increase without an offsetting increase in funding for affordable rental projects, to help address the significant need for such housing nationwide. Several nonprofit organizations that advocate for the development of multifamily housing also opposed the proposal on the basis that a reduction in the amount the Banks must allocate to their General Funds would run counter to the promotion, development, and preservation of rental housing. One of the nonprofit organizations urged FHFA to maintain the existing funding allocation cap of 35 percent because it ensures that a minimum 65 percent of each Bank's total annual AHP contribution is available to fund rental projects. The commenter also implied
The continued need for affordable rental housing is supported by the Joint Center for Housing Studies of Harvard University in its annual overview of the housing conditions in the United States. The organization's report,
In addition, under the new authority for the Banks to establish Targeted Funds for homeownership or rental projects, the Banks may increase their focus on homeownership needs by establishing Targeted Funds for homeownership. This mitigates the need to increase the maximum permissible annual funding allocation for Homeownership Set-Aside Programs.
The final rule does not adopt the commenter's recommendation to index the alternate $4.5 million maximum threshold. FHFA has analyzed whether revisions to the $4.5 million limit would be necessary and concluded that the Banks' need for, or use of, the $4.5 million maximum is unlikely to change.
The specific requirements for establishing, funding, and administering Homeownership Set-Aside Programs are discussed below in §§ 1291.12 and 1291.40 through 1291.44 of Section IV.
FHFA noted in the NPRM that the purpose of retention agreements is to deter flipping of homes, and also discussed the moral hazard risk that may be associated with the use of subsidy intended to provide housing to low- or moderate-income households to flip properties. However, as also noted in the NPRM, homes purchased by AHP-assisted households are not typically located in neighborhoods with rapidly appreciating house prices that would encourage flipping, and most AHP-assisted households do not sell their homes during the five-year retention period. Moreover, the NPRM indicated that the underlying policy of the AHP is to enable low- and moderate-income households to receive the benefits of homeownership, including appreciation in the value of their homes, which would weigh in favor of a reduction in the amount of subsidy repaid by the household when selling or refinancing the unit.
The majority of commenters who addressed the proposal to eliminate the requirement for owner-occupied retention agreements generally opposed it. A number of nonprofit advocacy organizations asserted that elimination of owner-occupied retention agreements would, by increasing homeowner equity, expose subsidy recipients to greater risks of fraud and abuse by predatory lenders and unscrupulous investors. These commenters also stated that the use of owner-occupied retention agreements has played an important role in preventing waste and abuse of AHP subsidies for homeownership.
Several nonprofit organizations asserted that retention agreements play an important role in deterring property flipping. These commenters noted that organizations that provide access for homeownership opportunities to lower-income families frequently employ retention agreements, often in the form of subordinate liens. They stated that this strategy has proven extremely effective in protecting homeowners from predatory lenders and preventing the loss of homeowner equity and subsidies through flipping. They suggested that FHFA provide the Banks with discretion on whether to use retention agreements as the Banks deem appropriate, to ensure protection of homeowner equity and AHP subsidies. A state housing
A nonprofit organization commented that while flipping in the AHP may be rare, it is rare precisely because of the retention agreement and not because homes purchased by AHP-assisted households are not typically located in neighborhoods with rapidly appreciating housing prices, as FHFA indicated in the NPRM. The commenter stated that it has seen evidence of flipping and other forms of fraud (specifically, the use of “straw buyers”), and that these material risks are largely unrecognized because of the effectiveness of retention agreements like those in the AHP.
Several commenters, including all of the Banks and a number of nonprofit organizations, recommended that FHFA authorize the Banks to use retention agreements in their discretion, based on criteria determined by each Bank, which would enable the Banks to address the different housing markets both across and within their districts, differences in eligible uses of AHP grants (
One Bank and a commercial lender specifically opposed requiring retention agreements where AHP subsidies are used for rehabilitation of units for elderly households and special needs households, such as persons with disabilities. The Bank noted that changes in circumstances related to households' ages or health could affect their need to sell their homes, and retention agreements requiring repayment of AHP subsidy upon sale would unduly burden these households.
Many of the commenters tied their strong support for owner-occupied retention agreements to their view that the agreements help deter flipping or other types of fraud, although neither supporting data nor studies were provided to support those views. Due to the volume of comments FHFA received, particularly from organizations with extensive experience with the AHP and similar programs that offer comparable homeownership assistance, FHFA is persuaded that retention agreements may play a relevant role in deterring abuse and flipping, as well as protecting homeowners from predatory schemes. The use of retention agreements in connection with AHP subsidies provided for home purchase, and rehabilitation with an accompanying purchase, aligns with approaches of other down payment assistance providers that require retention agreements for purchase of homes, including the U.S. Department of Housing and Urban Development's (HUD) HOME Investment Partnerships Program (HOME), certain private lenders, and state and local agencies. However, as further discussed below under § 1291.15(a)(7) in Section IV., the final rule adopts several requirements for owner-occupied retention agreements that are intended to ease the operational burdens on the Banks and members, and reduce the financial burden on AHP-assisted households, by minimizing the frequency and amount of AHP subsidy repayments by such households.
In contrast, where the AHP subsidy is used solely for rehabilitation of homes, with no accompanying purchase, flipping of the homes is unlikely. Many of the recipients of AHP subsidy for rehabilitation are long-term homeowners, typically elderly households or persons with disabilities. These homeowners often need AHP funds for rehabilitation of their homes, such as installing a wheelchair ramp or repairing a leaky roof, to enable them to remain in their homes and, therefore, are less likely to move from their homes within a five-year period. In addition, the requirement to repay AHP subsidy may impose a financial burden on such households in the event that they are required to sell their homes to pay expenses associated with a change in life circumstances, such as the need to move to an assisted living facility or nursing home.
The proposed rule also would have added a new section addressing remedial actions that FHFA could take if a Bank failed to comply with the proposed outcome requirements and FHFA determined that compliance was feasible. The proposed remedial authority would have included: Requiring the Bank to develop and implement a housing plan approved by FHFA; describing the specific actions the Bank will take to comply with the outcome requirements for the next calendar year; or requiring the Bank to reimburse its AHP Fund for the difference in the amount of AHP funds required to meet the outcome requirements and the amount the Bank actually awarded.
A trade association stated that a “cure-first” requirement could cause problems for members that provide equity for projects or that have committed construction or permanent financing. A nonprofit organization commented that focusing on curing noncompliance first might result in displacement of residents from the project.
Commenters described, and FHFA acknowledges, that there are cases where sound reasons exist for why a project sponsor or owner may be unable to meet its AHP application commitments. Further, there may be cases where project sponsors or owners cannot cure noncompliance because it is beyond their control to cure. However, commenters appeared to misread the language of the proposed “cure-first” provision to require project sponsors or owners to cure noncompliance regardless of the causes of the noncompliance, including noncompliance beyond their control to cure, thereby preventing the Banks from moving to modifications as a remedy for the noncompliance. This was not the intent of the proposed “cure-first” provision, as indicated by the language in the following paragraph of the proposed rule stating that “[i]f the project sponsor or project owner cannot cure the noncompliance within a reasonable period of time, the Bank shall determine whether the circumstances of the noncompliance can be eliminated through a modification . . . .” If cure of the noncompliance is beyond the control of the project sponsor or owner, they may be unable to cure the noncompliance within a reasonable period of time. The project sponsor or owner does not have to try to cure noncompliance that is incurable; it would simply provide a reasonable written justification to the Bank indicating why it could not cure the noncompliance. If the justification is reasonable, the Bank would then evaluate whether it could approve a modification under the rule's modification requirements.
In view of the apparent misunderstanding of the “cure-first” provision, FHFA has clarified the language in §§ 1291.29(a)(1) and 1291.60(b)(1) of the final rule by adding that project sponsors or owners must “make a reasonable effort” to cure the noncompliance, and adding a statement immediately following that one that if the noncompliance cannot be cured within a reasonable period of time, the requirements for a modification in the next paragraph shall apply.
Because the final rule does not adopt the proposed outcome-based scoring framework, the proposed remedial actions for failure to meet the outcome requirements are moot and, thus, not adopted in the final rule. Other remedies provisions related to AHP noncompliance are discussed below under §§ 1291.60 through 1291.65 in Section IV.
Several Banks and their Bank Advisory Councils described the Banks' board committee structures and corporate governance principles to demonstrate that their full boards are fully engaged and aware of all AHP responsibilities and initiatives. A number of commenters stated that the Banks' AHP governance structures and processes work effectively, with the board housing committees providing reports to the full board. A Bank cited FHFA's regulation at 12 CFR 1239.3, which authorizes the Banks to model their corporate governance and indemnification practices on the Revised Model Business Corporation Act (RMBCA), as support for maintaining the existing AHP regulatory requirements concerning board delegations. The Bank also referred to FHFA's regulation at 12 CFR 1239.5, which permits the boards to appoint board committees to carry out much of the board's responsibilities. The Bank stated that under the RMBCA, the full board must consider only those activities that “so substantially affect the rights of the shareholders or are so fundamental to the governance of the corporation.” The Bank further stated that delegation is a fundamental concept of efficient and competent corporate governance.
Numerous commenters opposed requiring a Bank's full board, rather than a committee of the board, to meet with the Bank's Advisory Council each quarter. The Banks focused on the challenges and inconveniences of requiring quarterly meetings of the full boards and Bank Advisory Councils. Some commenters stated that quarterly meetings with the full boards would be inefficient and unnecessarily costly, requiring Bank Advisory Council members to spend additional time away from their primary jobs in affordable housing and economic development.
Commenters also expressed concern that the proposal would reduce the influence and expertise of the Bank Advisory Councils. They pointed out that the board members who are not on the board housing committees possess different areas of expertise and, as a result, may not have the backgrounds necessary to engage fully in housing policy discussions with the Bank Advisory Councils. Commenters noted that some Banks hold annual meetings of the full board and Bank Advisory Council members, and their board housing committees meet quarterly with the Bank Advisory Councils and provide reports on the meetings to the full board. Commenters also stated that the proposed approach would be more restrictive than the governing statutory provision, which requires each Bank's Advisory Council to meet quarterly with “representatives of” the board of directors.
However, the Banks' full boards should be responsible for approving all strategic AHP policy decisions. Consistent with 12 CFR 1239.5, the board may rely on reports from board committees, but under the final rule, the authority to approve strategic policy decisions resides with the full board. As noted by commenters, the board committees, whose members have special housing expertise, perform an important role in the AHP strategic policymaking process by evaluating and developing policy recommendations, and FHFA expects their involvement in this process to continue. However, instead of the board committees approving strategic policy decisions on behalf of the full board, the board committees will need to report their policy recommendations to the full board for its approval or disapproval. The specific AHP strategic policy decisions that will need to be approved by the full board are approval of General Fund, Targeted Fund and Homeownership Set-Aside Program policies, and approval and amendment of the AHP Implementation Plan and the TCLP.
This section discusses the final rule's changes to the current Community Support Requirements regulation.
The Banks commented that FHFA's proposed outcomes requirements for project selection would effectively establish each Bank's housing needs priorities, obviating any need to conduct market research, obtain empirical data, and expand the content of the TCLPs. Several Banks and a Bank Advisory Council expressed concern that the proposal could diminish the role of the Bank Advisory Councils, but indicated that it may add value to the process if FHFA abandoned the proposed outcomes requirements for project selection. The Banks and the Bank Advisory Councils also expressed concerns about the proposed requirement to obtain empirical data about the housing needs in the districts, which they viewed as diminishing the Bank Advisory Councils role in advising the Banks' boards of directors. Two Banks opposed the proposed notification requirement to obtain empirical data because gathering and assessing the data would prevent the Bank from responding quickly to use the AHP for disaster relief. A nonprofit affordable housing intermediary opposed the proposed requirement to obtain empirical data on the grounds that the requirement would add a burden to the Banks and would not prove useful in making decisions about how to direct AHP funding because of the extent of housing needs throughout districts. A national affordable housing policy and advocacy organization recommended that the Banks be required to consult with state housing finance agencies in developing their TCLPs.
The final rule requires the Banks to identify, from among the affordable housing needs addressed in their TCLPs, the housing needs they plan to address through the Banks' AHP, and including the specific needs to be addressed by any Targeted Funds. This differs from the proposed rule, which would have required each Bank to identify in its TCLP the specific housing needs it planned to address through the Bank's funding allocations and scoring criteria under its General Fund and any Targeted Funds and Homeownership Set-Aside Programs in its AHP Implementation Plan. FHFA had proposed that the Banks expand the scope and specificity of their TCLPs in conjunction with the outcome-based approach for project selection. Because the final rule does not adopt the outcome-based approach, there is no longer a need to require the Banks to include detailed information about their General Funds and Homeownership Set-Aside Programs in their TCLPs.
In addition, the final rule removes the proposed requirement that the Banks support the identification and assessment of significant affordable housing needs with empirical data, in response to commenters' concerns that this would be burdensome for Banks to implement. Many of the Banks were concerned that the word “empirical” implied that the Banks would be required to commission third-party studies to determine district affordable housing needs. However, the final rule continues to require that the Banks assess market research they conduct or obtain in order to identify significant affordable housing needs in their districts. Banks can also obtain information from their Advisory Councils to support their market research.
The final rule continues to require the Banks to consult with their Bank Advisory Councils, members, housing associates, and public and private economic development organizations in developing their TCLPs, which should ensure a robust process for obtaining input on the TCLPs. In response to the comment that the Banks should also consult with state housing finance agencies in developing their TCLPs, those entities likely are housing associates, as defined under FHFA's General Definitions regulation,
However, FHFA agrees with commenters' concerns about the proposed six-month requirement for publishing the TCLPs. The commenters stated that the proposed six-month requirement would inhibit the Banks' abilities to respond to district affordable housing needs, including disasters, in a timely manner. The six-month requirement was proposed in conjunction with the Agency's proposal for an outcome-based framework for project selection. Under the proposed outcome-based approach, a Bank would have been required to identify in its TCLP the specific housing needs the Bank intended to address through its funding allocations and scoring criteria under its General Fund and any Targeted Funds and Homeownership Set-Aside Programs, as set forth in its AHP Implementation Plan. FHFA presumed that the Banks and other stakeholders would need additional time between the publication of the TCLPs and the beginning of the AHP application funding round to develop or revise AHP policies and procedures for inclusion in their AHP Implementation Plans, and conduct outreach to educate members, potential project sponsor applicants, and other AHP stakeholders about the Bank's revised scoring system. However, as discussed under Section III.A. above, the final rule does not adopt the proposed outcome-based approach. Therefore, there is no need to require the Banks to publish their TCLPs 12 months before the beginning of the TCLP year. Instead, the final rule requires the Banks to publish their TCLPs no later than the publication date of their AHP Implementation Plans. This should provide the Banks sufficient time to develop and publish their TCLPs, while underscoring the linkage between the TCLPs and the AHP Implementation Plans.
As noted above, the proposed rule would have required a Bank planning to establish a Targeted Fund to publish its TCLP at least 12 months before establishing and administering the Targeted Fund. FHFA finds commenters' concerns persuasive that this proposed timeframe would impede the Banks' ability to address pressing affordable housing needs, including natural disasters. Accordingly, the final rule sets the time period for publishing a TCLP that addresses the use of Targeted Funds as 90 days before the opening of the AHP application funding round, with an exemption for Targeted Funds addressing federal- or state-declared disasters, as they require expedited assistance. Because most Banks' TCLP years typically begin on January 1, the final rule does not tie the 90-day timeframe to January 1, which would result in the Banks having to publish their TCLPs by September 30 each year. Instead, the final rule ties the 90-day timeframe to the first day AHP applications can be submitted for the funding rounds for the Targeted Funds, which may be different dates throughout the year and be open for different lengths of time. This will provide the Banks more flexibility in administering their Targeted Funds. While significantly shorter than 12 months, the 90-day timeframe should still provide potential applicants with sufficient notice of the Banks' plans for their Targeted Funds so that applicants can prepare applications for submission to the Targeted Funds, with the goal being to produce sufficient numbers of applications for the Banks to be able to conduct robust competitive scoring processes for their Targeted Funds.
As discussed under Section III.F. above, the final rule adopts the proposal prohibiting a Bank's board of directors from delegating the responsibility for adopting or amending the TCLP to a committee of the board.
The dates by which the Banks must comply with these revised provisions are discussed above in Section I.
The final rule adopts the proposed reorganization of the current AHP regulation, with some modifications to take into account certain changes from provisions in the proposed rule. The reorganization is intended to provide greater clarity for users of the AHP regulation. Current and new regulatory sections are grouped under new Subpart headings according to similar subject matter, resulting in renumbering of most sections of the current regulation. The numbering of the sections is not consecutive from Subpart to Subpart in order to reserve room within Subparts for the addition of new sections in the future, as necessary. FHFA received no comments on the proposed reorganization of the regulation.
The following discusses each section of the final rule amending the current AHP regulation in the order the sections appear in the final rule.
As proposed, the final rule retains most of the definitions currently in § 1291.1. The final rule revises some of the current definitions and adds definitions, which are discussed below in the context of the related regulatory amendments.
In addition, as proposed, the final rule makes the following technical changes to certain definitions, which did not receive any comments:
• A definition of “AHP” is added, which means the Affordable Housing Program required to be established by the Banks pursuant to 12 U.S.C. 1430(j) and this part 1291.
• The definition of “Homeownership Set-Aside Program” indicates that establishment of such a program is in the Bank's discretion and is a noncompetitive program.
• The definition of “net earnings of a Bank” is revised by removing the requirement to deduct the Bank's annual contribution to the Resolution Funding Corporation, as the Banks are no longer required to make annual contributions to the Resolution Funding Corporation.
• In the definition of “rental project,” the term “manufactured housing” is
• References to the “competitive application program” are changed to the General Fund and any Targeted Funds. References to “homeownership set-aside programs” are capitalized.
The final rule also makes the following technical revisions and an addition to the definitions for greater clarity, which were not included in the proposed rule:
• Changes “funding period” to “funding round” to reflect the terminology commonly used by the Banks and AHP stakeholders. Adds a definition of “LIHTC” to mean Low-Income Housing Tax Credits under section 42 of the Internal Revenue Code (26 U.S.C. 42).
• In the definition of “visitable,” the reference to “2 feet, 10 inches” is changed to the equivalent “34 inches,” consistent with the use of “inches” later in the definition.
The dates by which the Banks must comply with the revised AHP regulatory provisions are discussed above in Section I.
Consistent with the proposed rule, the final rule relocates current § 1291.2(a) to § 1291.10. Section 1291.10 contains the Bank Act requirement stating that each Bank shall contribute annually to its AHP 10 percent of its net income for the preceding year, subject to a minimum annual combined contribution by all of the Banks of $100 million.
Consistent with the proposed rule, the final rule retains current § 1291.11 on the temporary suspension of AHP contributions without change. FHFA did not receive any comments on this provision.
For the reasons identified above in Section III.C., § 1291.12(b) of the final rule retains the current limit that a Bank may allocate to its Homeownership Set-Aside Programs up to the greater of $4.5 million or 35 percent of its annual required AHP contribution. The proposed rule would have increased the 35 percent limit to 40 percent.
As discussed in the NPRM, the proposed rule would reduce the current annual required allocation to a Bank's General Fund (
Two nonprofit organizations that advocate for the development of affordable multifamily housing opposed any reduction in the minimum funding allocation to the General Fund because it would result in less funding for affordable rental projects. One of those commenters supported this position by referencing the NPRM discussion about the Banks' requests for additional funding allocation authority for Homeownership Set-Aside Programs, which the Banks find easier to administer than the General Funds.
After considering the comments, FHFA has decided to adopt the proposed minimum 50 percent funding allocation requirement for the General Fund in the final rule. FHFA's decision not to increase the maximum percentage allocation for the optional Homeownership Set-Aside Programs from 35 to 40 percent will continue to ensure that each Bank generally allocates a minimum of 65 percent of its total AHP funds to competitive application programs via the mandatory General Fund and any optional Targeted Funds.
One-third funding allocation requirement for first-time homebuyers or owner-occupied rehabilitation, or a combination of both.
Consistent with the proposed rule, § 1291.12(b) of the final rule requires that at least one-third of a Bank's aggregate annual funding allocation to its Homeownership Set-Aside Programs be allocated to assist first-time homebuyers or households for owner-occupied rehabilitation, or a combination of both. The current regulation applies the one-third funding allocation requirement only to first-time homebuyers. In support of the proposal, FHFA noted in the NPRM that a substantial need for owner-occupied rehabilitation funds exists in many Bank districts, and the demand for such funds is likely to increase as the country's population ages.
The Banks, Bank Advisory Councils, and an advocacy organization supported the proposal, stating that it would encourage the use of more Homeownership Set-Aside Program funds for owner-occupied rehabilitation at a time when the Banks have identified a substantial need for these funds.
Two nonprofit organizations opposed the proposal, emphasizing the scarcity of resources for low- and moderate-income first-time homebuyers and noting that alternatives to AHP funding
Assisting first-time homebuyers is an important priority for the AHP, and the Banks' support for such homebuyers has greatly exceeded the required one-third funding allocation requirement. Since the inception of Homeownership Set-Aside Programs in 1995, over 80 percent of set-aside households have been first-time homebuyers. At the same time, a substantial need for owner-occupied rehabilitation funds exists in many Bank districts and the demand will likely increase over time. Expanding the scope of the one-third funding allocation requirement in the final rule to permit owner-occupied rehabilitation may help address this need by encouraging the Banks to increase their set-aside funding allocations for this purpose, while continuing to support the needs of first-time homebuyers. FHFA is not adopting the commenter's recommendation to establish a separate funding allocation requirement for owner-occupied rehabilitation, as this could limit the Banks' flexibility to determine how best to use their set-aside funds to meet the first-time homebuyer and owner-occupied rehabilitation needs within their districts.
The final rule also adopts a proposed technical revision to clarify that the one-third funding allocation requirement applies to the amount of set-aside funds “allocated” by the Bank to such households, not to the amount of set-aside funds actually used by them, because the Bank cannot control whether sufficient numbers of such households ultimately request set-aside funds in a given year. If an insufficient number of such households request set-aside subsidies, any unused funds would be provided to non-first-time homebuyers, and a Bank will not be considered in violation of the funding allocation requirement as long as it allocated the required amount. FHFA received no comments on this proposed technical change.
For any Targeted Funds, a Bank is required to include specific parameters that ensure that the Targeted Fund is designed to receive sufficient numbers of applicants for the amount of AHP funds allocated to the Fund to facilitate a robust competitive scoring process, as required in § 1291.20(b)(2)(i). In a change from the proposed rule, the final rule does not require a Bank to include in its AHP Implementation Plan the specific funding allocation amounts for its General Fund and any Targeted Funds and Homeownership Set-Aside Programs, including how the Bank will apportion the one-third funding allocation under its Homeownership Set-Aside Programs. This will accommodate any potential timing issues a Bank may encounter that could delay its ability to identify the specific amounts of its funding allocations.
Consistent with the proposed rule, the final rule relocates current § 1291.4, which addresses the membership requirements and duties of the Banks' Advisory Councils, to § 1291.14, with the clarifications and change discussed below.
An organization that advocates on behalf of multifamily housing providers strongly endorsed including representatives of for-profit organizations on the Bank Advisory Councils, noting that such representation adds the voices of developers and owners with experience in affordable multifamily housing and increases the pool of applicants for the AHP.
In contrast, several nonprofit organizations expressed concern that for-profit organization representation on the Bank Advisory Councils could dilute the representation and importance of nonprofit or mission-driven organizations on the Bank Advisory Councils. The commenters urged FHFA to ensure that the Bank Advisory Councils are populated predominantly by nonprofit and public sector representatives, who have mission-driven commitments to serving the community.
FHFA acknowledges the important role that nonprofit organizations play in addressing the housing needs of low- and moderate-income households throughout the country. Nonprofit, as well as for-profit and public sector, organizations all bring important affordable housing perspectives to the Bank Advisory Councils. In 2018, 56 percent of the total membership of all eleven Bank Advisory Councils represented nonprofit organizations, and 15 percent represented for-profit organizations. The rest of the membership represented consulting firms and government entities. For-profit organization representation is consistent with § 1291.14(a)(3) of the final rule, which retains the current requirement in § 1291.4(a)(3) for a diverse range of membership on the Bank Advisory Council such that representatives of no one group constitute an undue proportion of the membership, giving consideration to the size of the Bank's district and the diversity of low- and moderate-income housing and community lending needs and activities within the district.
As proposed, the final rule relocates current § 1291.9, which governs the AHP contractual agreements that must be in place between the Banks and members, and between the members and project sponsors or owners, to § 1291.15. The final rule makes a number of changes and clarifications to the provisions in this section from those in the proposed rule, as discussed below.
Consistent with the current regulation and proposed rule, the final rule does not require the Banks to conduct long-term monitoring of AHP projects that received LIHTCs during the AHP 15-year retention period. Noncompliance with LIHTC income-targeting and rent requirements has been the same as or substantially equivalent to noncompliance with AHP income-targeting and rent requirements. Although LIHTC project noncompliance is rare, instances of noncompliance with LIHTC income targeting or rent requirements can occur during the AHP retention period, which would mean that the projects' incomes or rents likely are also in noncompliance with similar AHP requirements. However, the noncompliance generally would not come to the attention of a Bank during the AHP retention period because the Banks do not monitor LIHTC projects.
FHFA specifically requested comments on the practicality of the proposed notice requirement, and whether it should also be required in the event of noncompliance by projects with the income-targeting or rent requirements of the government housing programs discussed under § 1291.50(c)(1)(ii) below.
Several nonprofit intermediaries and an advocacy organization supported the proposed notice requirement as reasonable. A number of other commenters, including developers, a nonprofit affordable rental housing trade association, and an affordable housing developer, recommended that notice to the Banks only be required where the noncompliance is “unresolved.” The commenters noted that the Internal Revenue Service (IRS) requirements for notification of noncompliance result in the issuance of many notices for small, easily resolved operating issues, and only a small fraction of those notices remain unresolved for a substantial period of time. The notices that remain unresolved may involve projects with material noncompliance issues that could have an impact on the projects' financial viability. Commenters stated that the Banks should only be made aware of such material and unresolved problems.
In contrast, the Banks opposed the proposal. One Bank stated that implementation of the proposal would be impracticable because the Banks must defer to the state housing finance agency or the IRS in cases of noncompliance. A trade association and a developer of housing with supportive services suggested that the proposal would have limited effect because LIHTC projects rarely become noncompliant due to the nature of the private equity investments. Another Bank and a nonprofit developer stated that project owners may not remember their obligation to report LIHTC noncompliance to the Bank under their AHP monitoring agreements. Finally, several commenters stated that the proposal would place an additional 15-year regulatory burden to monitor the projects on members and the original project sponsors even if they had transferred ownership of the project after project development.
FHFA finds the comments about the infrequent instances of LIHTC project noncompliance and the minor nature of some of the noncompliance persuasive. The Banks do not need to receive notices of LIHTC noncompliance that will be easily resolved because these types of noncompliance will be cured within a reasonable period of time and do not jeopardize the long-term financial viability of the project. However, the Banks should be notified in the event of any material and unresolved noncompliance during the AHP 15-year retention period, which may trigger a tax benefit recapture event, so that the Bank can monitor the project's status and take remedial action as required by the AHP regulation. As noted above, the Banks likely would not become aware of material and unresolved noncompliance without notification because they do not monitor LIHTC projects during the retention period.
Concerning the comments asserting that the proposal would impose an additional 15-year regulatory monitoring burden on members, FHFA notes that only project owners would be required to report noncompliance to the Bank.
The final rule does not include a requirement that project sponsors or owners send notices to the Banks of noncompliance by projects with the requirements of the other specified government housing programs because a separate monitoring provision in the final rule addresses such noncompliance. Specifically, § 1291.50(c)(1)(i) and (ii) requires the Banks to obtain information annually from project sponsors or owners on their projects' compliance with other government funding sources, as well as the projects' on-going financial viability, as part of “enhanced certifications” to the Banks.
FHFA requested comments in the proposed rule on whether owner-occupied retention agreements, if retained in the final rule, should require that such notice be provided to both the Bank and its designee (typically the member), rather than to one or the other. FHFA indicated that such a requirement would facilitate Program operations by giving the Bank simultaneous notice with the Bank's designee (if the Bank has one), and could facilitate repayment of AHP subsidy to the Bank in cases where a member subsequently fails and is subject to receivership actions by other federal agencies.
One Bank favored requiring notice to both parties, noting that it includes this requirement in its standard retention agreements as it is beneficial to the Bank to know that a sale or refinancing of the property has occurred. A nonprofit organization also favored requiring notice to both parties, stating that the minimal cost of the extra notice is worth the additional layer of oversight. Another Bank indicated that it includes a requirement for notice to the Bank in its retention agreements, but opposed requiring notice to a Bank designee, stating that this requirement might cause confusion as to who is responsible for calculating and providing a payoff in the event of a sale of the property.
As the comments indicate, requiring notice to the Bank is sound practice to ensure that the Bank is aware of events that might trigger an obligation to recover AHP subsidy. Therefore, the final rule requires that the Banks receive such notice. However, FHFA is persuaded by the comments that requiring notice to both the Bank and a Bank designee could be disruptive to the Bank's established processes. Each Bank should have the discretion to determine whether to require notice to a designee as may be appropriate for that Bank's operations. Accordingly, the final rule allows a Bank to determine, in its discretion, whether to require notice to a designee of the Bank.
Although the current regulation does not define “net gain,” as FHFA noted in the proposed rule, a majority of the Banks calculate the net gain as the sales price minus the original purchase price, purchaser and seller paid closing costs, and capital improvement costs, and then apply the pro rata repayment requirement. Some of these Banks have also deducted the AHP subsidy amount from the original purchase price. Other Banks have calculated the subsidy repayment amount using net proceeds identified on the Closing Disclosure, by deducting the senior mortgage debt from the sales price and, depending on the Bank, crediting or not crediting the household with its investments in the home. Some of these Banks have also added the AHP subsidy amount to the total proceeds.
Because the proposed rule would have eliminated the requirement for owner-occupied retention agreements in all cases, it did not propose a specific method in the rule text for calculating the repayment of AHP subsidy. However, the NPRM noted that FHFA reviewed the subsidy repayment requirements of other government housing programs, and in particular, HUD's HOME Program. The NPRM discussed the Owner Investment Returned First approach under the HOME Program which, if applicable to the AHP, would calculate net proceeds available for recapture as the sales price minus outstanding superior debt and seller paid costs, with the seller recovering its entire investment first from the net proceeds, the Bank then recovering the AHP subsidy on a pro rata basis, and any remaining net proceeds returned to the seller. FHFA requested comments on the merits and disadvantages of this approach and the net gain approach from the standpoint of the AHP-assisted households and the Banks, and whether there are other subsidy repayment approaches FHFA should consider if a retention agreement requirement were retained in the final rule.
FHFA received a number of comments on whether it should require a net gain or net proceeds calculation for determining the AHP subsidy repayment amount. One Bank supported the use of the net gain calculation discussed in the NPRM as the appropriate basis for calculating a pro rata repayment. In support of this recommendation, however, the Bank cited the benefits of coordinating the AHP calculation methodology with those in other government programs, such as those used by HUD, without specifying these HUD programs. Because the NPRM specifically described only one HUD program—the HOME Program—in the context of the owner-occupied retention agreement repayment calculation, and the version of the HOME Program calculation described in the NPRM is more similar to the net proceeds approach than the net gain approach, this commenter appears to have mistaken the net proceeds and net gain calculations. Another Bank stated that the net gain calculation has been effective for AHP-assisted home sales, but noted that the calculation does not work effectively for AHP rehabilitation grants because the AHP-assisted homeowners are frequently elderly or disabled, have lived in their houses for decades, and generally are unable to recall or do not have documentation of the original purchase price of their homes, a necessary component of the net gain calculation. Several Banks indicated support for an approach that would minimize the need to obtain information from the AHP-assisted households or third parties, noting that they have experienced frequent difficulty
A nonprofit organization expressed support for using the net proceeds recapture approaches as prescribed under the HOME Program. The commenter characterized the HOME Program approach as fair, and emphasized the value of promoting alignment between multiple government subsidy sources often used together in projects. A nonprofit economic research organization supported using a net proceeds approach, with AHP-assisted households able to recover their capital improvement costs, noting that this could help incentivize such households to maintain their properties. A Bank similarly commented that a repayment calculation that allows for recovery by households of their capital improvement costs would incentivize households in distressed areas to invest in such improvements.
The final rule eliminates the requirement for retention agreements for AHP subsidies used solely for rehabilitation. This change will eliminate the administrative burden on Banks and members of attempting to obtain subsidy repayments from households and also relieve a financial burden on those households. For owner-occupied retention agreements where the household used the AHP subsidy for purchase, or for purchase in conjunction with rehabilitation, the final rule establishes a net proceeds calculation that addresses the above-described concerns with the net gain approach.
The subsidy repayment calculation in the final rule also prioritizes return of the AHP-assisted household's investment in the home to the household. Specifically, § 1291.15(a)(7)(v) provides that the household shall repay the Bank the lesser of: (i) The AHP subsidy, reduced on a pro rata basis per month until the unit is sold, transferred, or its title or deed transferred, or is refinanced, during the AHP five-year retention period; or (ii) any net proceeds from the sale, transfer, or assignment of title or deed of the unit, or the refinancing, as applicable, minus the AHP-assisted household's investment. Section 1291.1 of the final rule defines “net proceeds” as the sales price minus reasonable and customary costs paid by the household and outstanding superior debt, or, in the case of a refinancing, the principal amount of the new mortgage minus reasonable and customary costs paid by the household and the principal amount of the refinanced mortgage. This calculation uses only information that is available from the settlement documents. The calculation also does not incorporate the subsidy originally provided to the AHP-assisted household,
FHFA is persuaded by the commenters that the subsidy recovery calculation should account for the AHP-assisted household's investment in the home. Households invest resources in their homes in the form of down payments, transaction costs (such as broker's commission and title search fees), capital improvement costs, and repayment of senior mortgage principal. The household's investment should be retained and prioritized in light of the purpose of AHP subsidies to provide households with the benefits of homeownership. The “household's investment” is defined in § 1291.1 to mean reasonable and customary transaction costs paid in connection with the purchase of the unit, down payment, cost of capital improvements made, and any mortgage principal repaid since the purchase of the unit until the time of sale or refinancing during the AHP five-year retention period where the household documents these costs to the Bank or its designee. For example, a household could produce documentation of its expenditures associated with the installation of a new roof.
Consistent with § 1291.9(a)(7)(ii) of the current regulation, the final rule requires that the AHP subsidy be reduced on a pro rata basis for the time that the household owned the unit until its sale or refinancing. However, whereas the current regulation provides generally for this reduction each year, the final rule requires a reduction each month, consistent with current Bank practice, as provided below:
The final rule provides that the Bank shall recover the lesser of: (i) The pro rata subsidy amount; or (ii) the net proceeds minus the household's investment.
Neither the Bank nor its designee is required to request or obtain the subsequent purchaser's income, but must evaluate any income documentation if made available. As noted in the proposed rule, the subsequent purchaser of an AHP-assisted unit is under no obligation to provide income documentation to the Bank or member. This has made it difficult for the Banks and their members to determine subsequent purchasers' incomes in order to determine whether the subsidy repayment exception applies. The current regulation is silent on the use of proxies in evaluating a subsequent purchaser's income. At least one Bank, however, has applied a proxy, under limited circumstances, to evaluate subsequent purchasers' incomes, in light of these operational constraints.
FHFA requested comments on what approaches should be specified in the retention agreement, if retained in the final rule, that would provide a reasonable basis to assume that the subsequent purchaser of an AHP-assisted unit is likely to be low- or moderate-income, including proxies that could serve this purpose such as
Commenters generally offered mixed opinions on the use of proxies, providing a variety of responses addressing which proxies would serve as acceptable methods for likely determining the income of the subsequent purchaser. A Bank supported the use of two proxies: Third-party certifications; and evidence that the subsequent purchaser was receiving direct homebuyer assistance from another government program. The Bank noted that using median home price and census tract income data may not be reasonable approaches as these data points would not adequately recognize or track areas affected by gentrification. The Bank asserted that gentrification occurs gradually and that median sales price and census tract data would not reflect investor purchases and sales to new or higher-income populations.
Another Bank supported the use of third-party certifications, evidence that the subsequent purchaser was receiving direct homebuyer assistance from another government program, and FHA or other underwriting standards. A nonprofit organization supported use of the latter two proxies.
The nonprofit organization objected to the use of geographically-based proxies, such as the purchase price of the AHP-assisted unit relative to area median home price, or location of the unit in a census tract or block group where at least 51 percent of the households are low- or moderate-income, because higher income homebuyers could purchase homes in low-income neighborhoods or census tracts. Another nonprofit organization stated that certain portions of distressed neighborhoods may be more upscale than nearby sections due to the presence of certain amenities, such as water features and golf courses. The commenter also opposed the use of third-party certifications, stating that it had witnessed significant unintended consequences of certification requirements in the context of FHA insurance and the foreclosure process.
A nonprofit organization encouraged the use of person-based proxies, such as evidence that the homebuyer received down payment assistance or participated in first-time homebuyer programs or family self-sufficiency programs, rather than geographically-based proxies, stating that geographically-based proxies fail to account for gentrification. The commenter stated, however, that self-certification or certain types of third-party certification (by the loan originator, for example) would be adequate.
One Bank expressed concern generally about the exception to the subsidy repayment requirement for sale to a low- or moderate-income purchaser, noting that the subsequent purchaser's income is not correlated to the AHP-assisted household's income. The Bank asserted that the subsidy repayment exception results in different treatment of similarly situated AHP-assisted households based on the subsequent purchaser's income. Another Bank objected to any requirement for a Bank or member to obtain sensitive income information from a subsequent purchaser with which neither institution has a contractual relationship.
FHFA has considered the comments regarding the use of proxies in the AHP and determined that the use of certain proxies will help ensure that Banks and members are not requiring repayment of subsidy by AHP-assisted households in cases where the subsequent purchaser is low- or moderate-income. Therefore, FHFA will require that Banks use one or more proxies that are reasonable indicators that the subsequent purchaser is likely a low- or moderate-income household, pursuant to Agency guidance. FHFA acknowledges commenters' discussions of the limitations of the proxies included in the NPRM. The Agency notes that as approximations, no proxy will be able to definitively determine the income of the subsequent purchaser.
FHFA requested comments in the proposed rule on whether, if the owner-occupied retention agreement requirement were retained in the final rule, there should be an exception to AHP subsidy repayment where the amount of subsidy subject to repayment, after calculating the net proceeds or net gain, is $1,000 or less. A number of commenters specifically supported a $1,000
The affordable housing policy organization stated that if the original AHP subsidy amount was $5,000 or less, there should be no subsidy repayment requirement, as such a small amount of subsidy would be unlikely to trigger flipping, and the transaction costs would nullify the value of the AHP subsidy. A community-based affordable housing financing organization and a community bank made a similar recommendation where the original AHP subsidy was $7,500 or less, or $10,000 or less, respectively, on the basis that the administrative expense was likely to exceed the value of the investment, and households should be entitled at a minimum to recover their required investment at the time of sale, net of AHP repayment so as not to impose financial injury.
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The proposed rule requested comments on whether this clarification should be made in the final rule if FHFA retained the current requirement for owner-occupied retention agreements in the final rule. The Banks and a trade organization favored including the clarifying language in the final rule. One Bank stated that the clarification would be useful for members and project sponsors using the AHP Bank in that it would help the Banks resolve ongoing issues with homebuyers using FHA loans as the underwriters flag the loans if this language is missing from the AHP retention agreements. The Bank also indicated that elderly owners are sometimes reluctant to sign the AHP retention agreement for fear that the potential AHP subsidy repayment obligation will fall on their beneficiaries upon their death(s).
A Bank and a nonprofit intermediary supported the proposal. The Bank stated that owners of multifamily properties often do not have other incentives to provide the Bank or its member with notice, and without notice to the Bank, the Bank might find it difficult to know the identity of the acquiring owner in the case of a sale, or whether the subsidy should remain with the property or the Bank should request repayment. A nonprofit lender recommended providing the Banks discretion regarding whether to require that project owners provide the notice to the Banks or designees. Two Banks opposed any change in the notice requirement because they address issues directly with the project sponsor. One Bank also stated that providing notice to the member may be viewed as imposing additional obligations on the member, which could discourage members' use of the AHP.
For the same reasons discussed above under the owner-occupied retention agreements, the final rule requires that notice be provided to the Bank and, in its discretion, to a designee of the Bank.
Section 1291.1 of the current regulation defines the “sponsor” of a project as a nonprofit, for-profit, or public entity meeting one of four specific criteria. Section 1291.5(c)(10) provides that for a project to be eligible to receive AHP subsidy, the project sponsor must be qualified and able to perform its responsibilities as committed to in its AHP application. Paragraphs (b)(4) and (g)(3) of § 1291.5 require a Bank to verify that the project meets its AHP application commitments at AHP application, and prior to each disbursement of AHP subsidy to the project, respectively.
The proposed rule would retain the definition of “sponsor” in current § 1291.1, but would have revised § 1291.5(c)(10) by extending the qualifications requirement to the project sponsor's affiliates and team members, including the general contractor. Thus, at AHP application, and prior to each AHP subsidy disbursement to a project, a Bank would have been required to determine whether the project sponsor, as well as all of its affiliates and team members, are qualified to perform the AHP project application commitments. The proposed rule would have added a requirement in the Agreements section of the regulation that, at AHP application, and prior to each disbursement of AHP subsidy to the project, the project sponsor must certify, or respond to specific questions about, whether it and its affiliates and team members have engaged in any misconduct as defined in FHFA's Suspended Counterparty Program regulation or by the Bank. The Bank's AHP subsidy application form and subsidy disbursement forms, or other related forms, would have been be required to include the qualifications criteria and certification or questions about any misconduct to be completed by the project sponsor.
Commenters who responded to this issue overwhelmingly opposed the proposal. A nonprofit intermediary commented that evaluating the qualifications of the general contractor and its team members at AHP application would be problematic because the project sponsor has yet to identify them at the AHP application stage. The nonprofit intermediary and a wide diversity of other commenters noted that project sponsors often select the general contractors after all funding sources are committed to the project and the project is ready to move forward to loan closings and construction. The nonprofit intermediary also stated that other financing sources frequently require that project sponsors conduct rigorous bidding processes in selecting general contractors, making a parallel evaluation by the Banks of the general contractors' qualifications unnecessary and overly burdensome.
The Bank Advisory Councils urged FHFA to maintain the current regulatory requirement for project sponsor qualifications and require that project sponsors certify compliance with the FHFA's Suspended Counterparty Program regulation only prior to AHP subsidy disbursement. The Bank Advisory Councils stated their preference for the Banks to be able to rely on the due diligence and capacity review by other funders of project sponsors and their affiliates and team members. The Bank Advisory Councils noted that the Banks currently have processes in place to monitor project progress and the project sponsor's performance.
The Banks asserted that requiring that the Banks' assessment of project sponsor capacity include compliance with FHFA's Suspended Counterparty Program regulation by all parties is unnecessary. They stated that the Banks lack privity of contract with general contractors and other parties and, therefore, cannot compel them to disclose such information. The Banks emphasized this point in particular with respect to owner-occupied rehabilitation grants that involve multiple contractors. They also commented that other funding sources perform due diligence reviews of the general contractor.
A Bank pointed out that while the term “sponsor” is defined in the current regulation and proposed rule as a nonprofit, for-profit, or public entity meeting one of four specified criteria, the proposal states in § 1291.15(b)(2) that “a project sponsor includes all affiliates and team members such as the general contractor.” The Bank stated that if the term “sponsor” is intended to include affiliates and team members, the Bank would need to consider whether its AHP subsidy collection efforts and settlements in the event of project noncompliance could extend beyond the assets of the project sponsor to include those of the project sponsor's affiliates and team members. A nonprofit intermediary noted that the proposed rule did not provide guidance on the definitions of “affiliate” and “team member.”
A nonprofit developer commented that the proposal would “cut out” team members that have yet to establish a track record in the industry from AHP
FHFA's intent for the proposal was to ensure that, in addition to the project sponsor, the project sponsor's affiliates and team members have the necessary qualifications to perform the AHP application commitments. The proposal was also intended to enable a Bank to identify any misconduct by the project sponsor and any affiliates or team members so that the Bank could determine whether it should accept the project sponsor's AHP application or approve requests from the project sponsor for AHP subsidy disbursement. Banks would have the latitude to define “misconduct” to include types of misconduct beyond those specifically addressed by FHFA in the Suspended Counterparty Program regulation. Therefore, if a Bank subsequently determined that a project sponsor's certification was false and that the project sponsor or its affiliates and team members were not qualified to perform the AHP application commitments, the Bank would have a contractual basis to cancel the project sponsor's AHP application and deny its requests for disbursement of AHP subsidy. The Bank would also have a basis to reject future AHP applications from the project sponsor, or to reject AHP applications that include the project sponsor's affiliates or team members, on the basis that the project sponsor is not qualified to carry out its AHP responsibilities.
As noted by the commenters, however, project sponsors generally have not selected their general contractors at the time of AHP application. Thus, it would be impossible for project sponsors to evaluate and certify as to the qualifications and any misconduct of their general contractors and the general contractors' subcontractors at the time of AHP application. Concerning the comments on the Banks' lack of privity with the general contractors and that an evaluation by the Banks of the general contractors' qualifications parallel to that of other funders is unnecessary, FHFA notes that it did not propose that the Banks evaluate or underwrite directly the general contractors' qualifications, but rather that the Banks obtain certifications from the project sponsors on their general contractors' qualifications. The Agency's decision not to adopt the proposed requirement for evaluation of the general contractor's qualifications should alleviate commenters' concerns that projects with less experienced team members would be excluded where the project team as a whole possesses the capacity to successfully develop the project.
Accordingly, the final rule requires the Banks to obtain a certification from the project sponsor of only its own qualifications and lack of misconduct at the time of AHP application and at AHP subsidy disbursement.
The final rule makes two clarifications to the proposed rule language. First, it changes the reference to “misconduct” to “covered misconduct” to reflect the terminology in the Suspended Counterparty Program regulation. Second, it states that if a Bank adopts its own definition of “covered misconduct,” that definition must incorporate the definition of “covered misconduct” in the Suspended Counterparty Program regulation at a minimum.
Consistent with the proposed rule, the final rule relocates current § 1291.10, which addresses conflicts of interest regarding financial interests of Bank directors, Bank employees, Bank Advisory Council members, and their family members, unchanged to § 1291.16. FHFA did not propose any changes to this section.
A Bank commented that the terms “financial interest” and “family member” were overly broad and should be defined in accordance with comparable terms in FHFA's regulation governing conflict of interest policies for Bank directors.
FHFA did not receive comments on these provisions.
Proposed § 1291.20(b) would have prohibited a Bank from establishing a Targeted Fund unless at least 12 months had passed since the publication of the Bank's TCLP. The final rule addresses the timing of the establishment of Targeted Funds in § 1291.13(d) and (e), and in § 1290.6(c) of the Community Support Requirements regulation. Comments received on the proposed timing requirements are addressed under § 1290.6 above.
The final rule establishes the phase-in requirements for a Bank's establishment of Targeted Funds. A Bank may establish one Targeted Fund in the first year that it establishes a Targeted Fund. If a Bank has previously administered at least one Targeted Fund in any preceding year, a Bank may establish two Targeted Funds. If a Bank has previously administered two Targeted Funds in any preceding year, it may
The Banks questioned whether this proposed requirement was designed to measure sufficiency in terms of a Bank's approach in soliciting applications, or based on the number of applications actually received. Two of those Banks suggested that the measurement be based on the structure of the Targeted Fund and not on the actual number of applications received. FHFA notes that the language stating that the Targeted Fund is “
As proposed, the final rule relocates the funding round and application process requirements in § 1291.5(b)(1), (b)(3), and (b)(4) of the current regulation to § 1291.22. The final rule substitutes the term “rounds” for “periods” to reflect common usage among the Banks and AHP stakeholders. FHFA did not receive any comments on this section.
Under the current regulation, for rental projects that are not occupied at the time of application and are approved for AHP subsidy, the households must have incomes meeting the income targeting commitments in the approved AHP application upon initial occupancy of the rental units. For projects involving the purchase or rehabilitation of rental housing that are occupied at the time of AHP application, the households must have incomes meeting the income targeting commitments in the approved AHP application at the time of the AHP application. The purpose of qualifying current occupants' incomes at the time of AHP application is to discourage displacement of occupants whose incomes are higher than the income commitments in the approved AHP application.
FHFA specifically requested comments on how to encourage preservation of rental projects through the AHP while discouraging displacement of current occupants with incomes higher than those targeted in the AHP application, including whether the proposed requirement for a relocation plan approved by the primary funder of the project is reasonable. A state agency and a bank supported the proposed requirement for submission of a relocation plan, stating that it would provide adequate protection of tenants from displacement. A trade organization recommended that the Banks have discretion to either establish such a policy or to defer to policies established for other subsidy programs assisting the project.
Several other commenters and a Bank noted that there may be cases where review by the Bank may be necessary to determine whether a relocation plan provides adequate tenant protections and assistance. A nonprofit intermediary recommended that the Banks have discretion to evaluate the appropriateness of tenant protections in the context of the local market. Another Bank, a CDFI, and a nonprofit developer stated that for multifamily preservation projects that have no relocation plans because they lack government funding or their primary funders are commercial banks, the Bank should have authority to approve a relocation plan. The Bank reported that in 15 percent of its rental rehabilitation projects, AHP funds and the projects' replacement reserves were the only sources of funds and, thus, the projects were not subject to relocation plans approved under a government program.
The majority of commenters that addressed this issue, including nonprofit intermediaries, trade associations, a lender, and nonprofit developers, recommended that FHFA require the Banks to apply either a “next tenant” policy or a “grandfather” policy to existing tenants who exceed the AHP income commitments in order to avoid displacement of those tenants from the
After considering the comments, FHFA is adopting in the final rule the proposal to allow income qualification of current occupants at initial occupancy after completion of the purchase or rehabilitation, at the Bank's discretion provided there is a relocation plan for current occupants that is approved by one of the project's federal, state, or local government funders, or a reasonable relocation plan for current occupants that is otherwise approved by the Bank. By requiring that the relocation plan be government-approved, or otherwise approved by the Bank subject to a reasonableness standard, as opposed to any relocation plan approved by one of the project's primary funders, the final rule helps ensure that the relocation plan meets standards for adequate relocation protections and assistance to tenants. Allowing a Bank to approve a reasonable relocation plan also responds to the commenters' concerns about projects where there is no government-approved relocation plan, or where the Bank has determined that some types of relocation plans typically approved in its district may not provide adequate tenant relocation protections.
FHFA acknowledges the value in the commenters' recommendations that the Banks be allowed to “grandfather” existing tenants based on their incomes when they moved into the project. However, FHFA has not included this recommendation in the final rule because the income targeting requirements for other federal and state programs could differ substantially from the AHP income targeting requirements (
FHFA is also not adopting commenters' recommendations for a “next-tenant” policy in the final rule. While the approach would avoid displacement of current tenants not meeting the AHP income targeting commitments, it could be a number of years before these tenants move out of the building and AHP income-eligible tenants replace them, meaning the project would not be serving AHP-income eligible households for some period of time. In addition, the practice could increase the income-targeting monitoring burden on the Banks and project sponsors.
The current regulation requires that rental projects establish their eligibility for AHP subsidy by demonstrating: (1) A need for the AHP subsidy; (2) developmental and operational feasibility; and (3) project cost reasonableness. The regulation states that the estimated sources of funds for a project must equal its estimated uses of funds, as reflected in the project's development budget. Where the project's uses of funds exceed its sources of funds (excluding the AHP subsidy), the difference is the project's need for AHP subsidy, which is the maximum amount the project may receive.
As discussed in the NPRM, Banks and various stakeholders have asserted that the current regulatory language, as well as preamble language from an earlier AHP rulemaking, indicate that, for rental projects, the Banks are only required to review the project's development budget and not its operating
In an effort to address any misunderstandings or differences in views about the process and requirements for determining a rental project's need for AHP subsidy, the proposed rule would have required the Banks to review the project's operating
The NPRM included proposed guidance for evaluating that a project's cash flow and costs are reasonable, and how the Banks should perform the need for subsidy analysis in cases where: (1) Capitalized reserves exceed the Bank's project cost guidelines; (2) the project provides supportive services; and (3) the cash flow or debt coverage ratio exceeds the Bank's project cost guidelines.
Numerous commenters, including the Banks, nonprofit advocacy organizations and intermediaries, trade associations, and nonprofit and for-profit developers,
For rental projects providing supportive services, the proposed guidance in the NPRM recognized the challenges associated with the analysis of these projects since, under the Bank Act and the AHP regulation, AHP subsidy may not be used to fund supportive services expenses. The NPRM stated that the Banks should require a separate supportive services budget that captures income and expenses for all supportive services activities to ensure that the project can reasonably offer them. The NPRM indicated that for projects where a government entity provides operating subsidies that fund both housing operating costs and supportive services and the operating subsidies cannot be readily bifurcated, the operating
The comments received in response to the proposed regulatory change and guidance reflect significant differences between the commenters' understanding of, and experience implementing, the requirement for determining need for subsidy and the Agency's rationale for addressing and clarifying the requirement. In light of these differences, the final rule does not adopt the proposed regulatory requirement for the Banks to review the operating
The current regulation provides that when a Bank determines the need for AHP subsidy in homeownership projects where the sponsor extends permanent financing to the homebuyer, the sponsor's cash contribution (which is included in the project's cash sources of funds) shall include the present value of any payments the sponsor is to receive from the buyer, including any cash down payment from the buyer, plus the present value of any purchase note the sponsor holds on the unit. If the note carries a market interest rate commensurate with the credit quality of the buyer, the present value of the note equals the face value of the note. If the note carries an interest rate below the market rate, the present value of the note shall be determined using the market rate to discount the cash flows.
Prior to the issuance of the proposed rule, some Banks and AHP stakeholders requested that FHFA eliminate this provision, citing the complexity of the calculation. Others suggested that the regulation should treat sponsors like revolving loan funds, on the basis that their financing model operates essentially as a revolving loan fund. FHFA specifically requested comments in the proposed rule on whether the current AHP requirements for sponsor-provided permanent financing are reasonable, including whether the sponsors have a need for AHP subsidy in light of their particular financing model, and whether the current method in the regulation for determining their need for AHP subsidy understates or overstates the amount of AHP subsidy needed. FHFA also requested comments on whether the regulation should consider sponsors using this financing model to be revolving loan funds and, if so, whether they should be subject to current or different AHP revolving loan fund requirements.
A national intermediary and a number of its affiliates opposed the current AHP regulatory requirements for sponsor-provided permanent financing. They stated that the AHP regulation does not require any other lender to disclose how it obtains funds to lend to a homebuyer and that this is an unfair burden placed solely on sponsor-provided permanent mortgage lenders. Commenters stated that, from a practical and examination standpoint, the AHP subsidy must be disclosed on the Closing Disclosure, which shows the face value of the mortgage loan and demonstrates the pass through of the AHP grant to the homebuyer. The national intermediary further stated that the regulatory requirement was intended to show that due to lending money at a below market interest rate, the AHP subsidy is needed as a source for the discounted loan (present value of the loan). The commenter asserted, however, that since the “present value loan amount” is not on the Closing Disclosure, this creates an additional document for these organizations to create that is burdensome and provides no additional value to the Banks in evaluating the need for AHP subsidy.
In view of the comments and the value of receiving further input on these issues, FHFA has not adopted any changes to these requirements in the final rule and intends to conduct rulemaking in the near future on sponsor-provided permanent financing.
As proposed, § 1291.24(b)(4) of the final rule adds that, consistent with current practice, capitalized reserves, periodic deposits to reserve accounts, operating expenses, and supportive services expenses are not eligible uses of AHP subsidy. The Banks concurred that supportive services expenses are not an eligible use of AHP subsidy. No comments were received on the other prohibited uses of AHP subsidy.
One Bank supported the proposal on the basis that it would reduce the concentration of AHP awards in a small number of project sponsors. Several other commenters provided mixed or qualified views on the proposal. A Bank stated that a project sponsor subsidy limit could provide an opportunity for other types of project sponsors to participate, but it could also restrict project sponsors with otherwise competitive applications from receiving AHP awards. A trade association stated that a project sponsor subsidy limit could limit Bank exposure to risk associated with a single project sponsor and encourage diversification of project sponsors, but because project sponsors differ substantially in size, scale, geographic scope, capacity, and internal controls, individual AHP applications should be evaluated based on their merits without an arbitrary project sponsor subsidy limit. The commenter recommended that the Banks establish any project sponsor subsidy limit as a percentage of total AHP awards, so that it is high enough to allow a project sponsor to receive multiple awards in a single AHP funding round. A nonprofit affordable housing intermediary likewise supported awarding AHP subsidy based on the merits of individual applications, but acknowledged that having a project sponsor subsidy limit would make the AHP subsidy available to more project sponsors.
Other commenters opposed providing the Banks discretion to adopt project sponsor subsidy limits. A nonprofit affordable housing intermediary commented that the Banks can have a much greater impact if they award AHP subsidy based on the merits of individual applications rather than setting an arbitrary maximum subsidy limit per project sponsor. Two nonprofit developers stated that the proposed project sponsor subsidy limit would penalize project sponsors that have multiple projects that score well and are eligible for subsidy awards. A trade organization stated that the proposed project sponsor subsidy limit would allow less qualified projects and project sponsors to benefit at the expense of better qualified projects and project sponsors whose applications exceed the subsidy limit, thereby eroding the transparency of the application approval process.
After consideration of the comments, FHFA has decided to adopt the proposal in the final rule. Each Bank should have discretion to determine whether the benefits of establishing a project sponsor subsidy limit in its district outweigh its potential disadvantages, based on factors such as the characteristics of their project sponsor applicant pools, the record of accomplishment of experienced and less experienced project sponsors in receiving AHP subsidy awards, and the housing needs of the district.
As proposed, the final rule further provides that the maximum AHP subsidy limit per project or per project unit may differ for each Fund. FHFA's intent in providing this flexibility is to allow the Banks to establish maximum subsidy limits for each Fund that addresses the specific characteristics of project applicants for that Fund. For instance, a Bank may want to establish a higher maximum subsidy limit per project for a Targeted Fund focused on certain geographies or development types in light of differences in housing development costs, such as high-cost areas or projects where most units contain three or more bedrooms to accommodate larger households. FHFA did not receive any comments on this proposal.
As discussed in Section III.A. above, the final rule does not adopt the proposed outcome-based framework and instead revises the scoring-based project selection framework in the current regulation for the General Fund. New § 1291.25 addresses scoring methodologies for evaluating applications under the General Fund and Targeted Funds. Section 1291.25 retains much of the content in current
In addition, as proposed, the final rule provides that if a Bank adopts a scoring criterion under its Bank district priority for housing located in the Bank's district, the Bank may not allocate points to the scoring criterion in a way that excludes all out-of-district projects from its General Fund. This provision strengthens the statement in the preamble to the 2006 AHP final rule that a Bank should not use the scoring criterion in this way by explicitly prohibiting the allocation of points in such way. FHFA did not receive comments on this provision.
For Targeted Funds, as proposed, § 1291.25(a)(2)(ii) of the final rule requires a Bank to allocate 100 points among all of the scoring criteria adopted by the Bank for the Targeted Fund. The final rule adds a requirement that a Bank may not allocate more than 50 points to any one scoring criterion for a Targeted Fund in order to ensure that applications are evaluated in a competitive process, taking all of the scoring criteria into account.
In addition, the Banks' proposal retains certain standards in the current scoring criteria. The proposal retains the current 60 percent maximum scoring standard for targeting very low-income households as part of the income targeting priority. The Bank's proposal also retains the current minimum threshold of 20 percent for the number of units in a project that must target homeless or special needs households in order to receive points, and includes a minimum 20 percent threshold for projects serving other targeted populations, in contrast to the 50 percent minimum threshold for these populations in the proposed rule. In addition, the Banks' proposal makes slight changes to the types of populations included under the special needs and other targeted populations categories, discussed further below. Finally, the Banks' proposal provides for the Banks to define the terms “rural area” and “affordable housing preservation,” as currently allowed, and to define “residential economic diversity,” rather than use the current regulatory definition. The proposed rule would have required the Banks to use FHFA's Duty to Serve definitions of those terms.
Additional comments received from the Banks and other commenters on specific scoring criteria proposed by FHFA are discussed below.
FHFA acknowledges, as it did in the NPRM, that in the Program's experience, a relatively limited number of projects have satisfied the government properties priority, and the Agency expects that to continue. However, because the use of government-owned properties is a priority specified in the Bank Act, FHFA is retaining it as a scoring criterion in the project selection framework in the final rule.
Similarly, sponsorship of a project by a nonprofit organization or government entity is a priority specified in the Bank Act and, therefore, is also retained as a scoring criterion in the project selection framework in the final rule. The Banks award a majority of AHP awards through their Competitive Application Programs to projects with nonprofit or government entity sponsors. Continued support of these types of project sponsors is important because they have a long record of using AHP subsidies to support affordable housing.
Proposed § 1291.48(b) would have required that, each year, each Bank award at least 10 percent of its annual required AHP contribution to low- or moderate-income households, or to projects targeting such households, for the purchase by such households of homes under any or some combination of the Bank's General Fund, any Targeted Funds, and any Homeownership Set-Aside Programs. As discussed in the NPRM, this priority is consistent with the priority in the Bank Act for the purchase of homes by low- or moderate-income families. FHFA specifically requested comments on whether 10 percent of a Bank's total annual required AHP contribution constitutes sufficient prioritization for this home purchase priority, or whether the percentage should be higher or lower. A number of commenters expressed differing views over the proposed 10 percent figure. A Bank stated that it would establish an appropriate prioritization, while the Banks opposed it as overly prescriptive and difficult to meet in high cost areas.
The scoring criterion in the final rule responds to commenters' concerns that the proposed 10 percent allocation to a Bank's Homeownership Set-Aside Programs would be too restrictive. In areas of Bank districts where the cost of homeownership is very high, comparatively fewer low- or moderate- income households would be able to afford to purchase homes, even if funds for down payment and closing costs were available to them from a Homeownership Set-Aside Program. A Bank with such high cost areas in its district, thus, may prefer not to allocate funds to Homeownership Set-Aside Programs and to support instead the development of rental units as the most impactful use of its AHP subsidies. The final rule enables the Banks to address such situations by providing them the option to adopt the scoring criterion for home purchase by low- or moderate-income households in lieu of allocating at least 10 percent of their AHP funds
Proposed § 1291.48(c) would have established an outcome requirement for a regulatory priority for very low-income targeting for rental units. Each Bank would have been required to ensure that each year, at least 55 percent of all rental units in rental projects receiving AHP awards under the Bank's General Fund and any Targeted Funds are reserved for very low-income households (households with incomes at or below 50 percent AMI). FHFA specifically requested comments on this proposed requirement, including whether the proposed 55 percent threshold, the applicability solely to rental units, and income-targeting at 50 percent AMI were appropriate.
Commenters generally opposed the proposal. The Banks, a Bank Advisory Council, and two trade and policy organizations expressed concern that this requirement would fail to recognize the benefits of mixed-income occupancy projects, which allow developers to cross-subsidize units. A nonprofit intermediary stated that the income targeting standards should align with LIHTC income targeting standards. The Banks' project selection proposal retains the standard for targeting very low- and low- or moderate-income households set forth in the current regulation, which, for rental projects, requires the Banks to award the maximum income targeting score to projects that reserve 60 percent of the units for households with incomes at or below 50 percent AMI.
As discussed under Section III.A. above, the final rule does not adopt the proposed outcome-based scoring framework, including this proposed very low-income targeting regulatory priority. Instead, consistent with the Banks' project selection proposal, the final rule retains the current scoring criterion for income targeting in order to continue the AHP's important role in addressing the housing needs of very low- as well as low- or moderate-income households. Retaining the existing 20-point minimum allocation for income targeting also emphasizes the AHP's role in this regard. At the same time, the final rule retains the current 60 percent of units standard, which is intended to encourage the awarding of more points to mixed-income housing. The income targeting standards in the regulation cannot be changed to align completely with the LIHTC income targeting standards because the Bank Act's standards are different.
The final rule adopts three regulatory priorities, each of which comprises a number of specified eligible housing needs, some of which are scoring criteria in the current regulation. The specified eligible housing needs are examples of the kinds of housing needs a Bank may choose to adopt under each regulatory priority and are not exclusionary. A Bank may choose to adopt other housing needs under the regulatory priority that are similar in nature to those specified under the regulatory priority. FHFA may also specify additional eligible housing needs under the regulatory priorities by separate guidance, as new housing needs arise. A Bank must adopt at least one housing need as a scoring criterion under each of the three regulatory priorities.
FHFA's research to develop the housing priorities in the proposed rule leads it to believe that these three regulatory priorities represent the most pressing housing needs currently facing the Nation, while providing the Banks sufficient flexibility to meet future housing needs. The three regulatory priorities and examples of their eligible housing needs are discussed below.
Consistent with the proposed rule, the final rule adopts a regulatory priority for underserved communities and populations, including the following eligible housing needs described in further detail below: Housing for homeless households; housing for special needs populations; housing for other targeted populations; housing in rural areas; and rental housing for extremely low-income households. FHFA may also identify other specific housing needs as eligible under this regulatory priority by separate guidance, as new housing needs arise.
Commenters overwhelmingly opposed the proposed increase in the minimum threshold. A number of commenters raised project development concerns with the proposal, such as difficulties in securing a project site or project financing. A Bank Advisory Council stated that a minimum 50 percent threshold would be very challenging for project sponsors to meet given the lack of operating subsidies available for homeless housing and special needs housing. A Bank and its Bank Advisory Council emphasized that a minimum 50 percent threshold would not align with current housing models or the requirements of other funders that also fund AHP projects, especially since many housing finance agencies require that a maximum of 25 or 30 percent of the units in a project target homeless households. A number of representatives of a nonprofit developer stated that a specific project would not have been able to overcome community opposition if it had been required to reserve 50 percent of its units for homeless households. A number of nonprofit housing developers asserted that many homeownership projects, even those serving specified populations, would find it difficult to meet a 50 percent threshold as these populations often find it difficult to qualify for homeownership opportunities.
FHFA is persuaded by the commenters that increasing the current minimum 20 percent threshold for homeless households to 50 percent could create difficulties for the financing of such projects, particularly in states or localities with limited designated funding sources for such households. The Agency also recognizes that the development of such projects at a 50 percent threshold level may face community opposition. Therefore, the final rule retains the current minimum
However, in a change from the proposed rule, the final rule retains the current minimum threshold of 20 percent for the number of units that must be reserved for special needs populations in order for a project to receive scoring points. FHFA specifically requested comments on whether this proposed increase, which was intended to encourage projects dedicated to serving special needs populations, would be appropriate. In addition, in contrast to the proposed rule, which would have required projects with units serving special needs populations to provide supportive services or access to supportive services for the specific special needs population served, the final rule does not require projects to provide such services or access to such services in order to receive points under this scoring criterion.
One commenter supported the proposed increase in the minimum threshold from 20 to 50 percent, stating that significant evidence documents that people with disabilities prefer to live in housing designed to address their specific needs, rather than being dispersed through a mixed-occupancy project. Commenters otherwise overwhelmingly opposed the proposed increase in the minimum threshold. A Bank Advisory Council stated that a minimum 50 percent threshold would be very challenging for project sponsors to meet given the lack of operating subsidies available for special needs. A Bank and its Advisory Council emphasized that a minimum 50 percent threshold would not align with current housing models or the requirements of other funders that also fund AHP projects, especially since, according to these commenters, many housing finance agencies require that a maximum of 25 or 30 percent of the units in a project target special needs. Numerous commenters also questioned whether the proposed increase in the threshold would be consistent with other applicable federal law governing the housing integration of persons with disabilities.
For the same reasons discussed under the homeless households scoring criterion above, the final rule retains the current minimum threshold of 20 percent for special needs households. The final rule does not adopt the commenter's recommendation to establish a maximum 25 percent limit on the number of units in a project that could be reserved for occupancy by persons with disabilities because it would unnecessarily constrain Banks in districts that can accommodate projects with a higher threshold.
Several commenters objected to the proposed requirement that projects provide supportive services, or access to supportive services, for special needs populations in order to receive points under this scoring criterion. As discussed in the NPRM, this requirement was proposed because these populations have special needs associated with their particular life circumstances that could be addressed by targeted supportive services. An advocacy organization focused on addressing the needs of persons with disabilities urged that the final rule provide project sponsors with discretion to offer supportive services and provide residents with disabilities individual choice in how and from whom they access services. The Banks' project selection proposal does not require provision of, or access to, supportive services for special needs populations. One Bank, in support of the Banks' project selection proposal, stated that many housing providers do not provide on-site supportive services, and another Bank stated that, among those providers who do provide supportive services, many may not continue to do so in the future. Several Banks recommended that the final rule leave the decision on whether supportive services are appropriate for particular projects to the discretion of affordable housing developers.
FHFA notes that the proposed rule would not have required the provision of supportive services but merely “access to” those services. Nevertheless, FHFA finds the comments on supportive services persuasive and has not included a supportive services requirement in the final rule. The final rule, instead, authorizes the Banks, in their discretion, to adopt a supportive services requirement for specific special needs populations identified by the Bank.
Other commenters provided input on the specific special needs populations proposed for inclusion under this scoring criterion. An advocacy organization that focuses on addressing the needs of people with disabilities supported including people with disabilities as an underserved population under the special needs scoring criterion. An intermediary that focuses on supportive housing supported the inclusion of: Formerly incarcerated persons; victims of domestic violence, dating violence, sexual assault, or stalking; and unaccompanied youth. No commenter objected to the inclusion of any of the populations specified in the proposed rule.
Accordingly, the final rule includes the eligible special needs populations specified in the proposed rule. As
FHFA received several comments on this proposed scoring category, including comments on the types of targeted populations that should be included. A nonprofit affordable housing intermediary strongly supported the inclusion of the specified other targeted populations as a regulatory priority, noting that many of the specified populations reside in rural communities. The commenter also recommended that FHFA narrow the targeting of housing for Native Americans to housing for Native Americans on or near federally recognized tribal lands, stating that this is where housing needs are most acute for this population. The Banks' proposal for project selection replaces the term “Native Americans” with “Native Peoples,” to ensure that the category includes Native Alaskan and Hawaiian populations. The Banks' proposal eliminates the multigenerational household category. Multiple Banks characterized the term “multigenerational” as ambiguous, expressing concern that the proposed rule would prioritize housing that accommodates only parents and children.
As proposed, the final rule includes Native Americans as a specific eligible targeted population under this scoring category, in view of their significant housing needs, as discussed in the NPRM. The final rule continues to use the term “Native Americans” because it is commonly used in other programs. Under this scoring category, a Bank may also include Native Alaskan and Native Hawaiian populations, at its discretion. The Agency acknowledges the acute housing needs of Native Americans on or near federally recognized tribal lands, but also recognizes that Bank districts vary in the degree to which they contain federally recognized tribal lands. The broader definition in the final rule gives the Banks discretion to best target AHP subsidies to meet the housing needs of Native American populations in their districts.
Regarding multigenerational households, such as grandparents raising grandchildren, the NPRM explained that such households may have a need for special housing that includes, for example, features of elderly projects (
A trade association and two nonprofit affordable housing intermediaries specifically supported the proposed inclusion of rural housing as a specified need in the Program. One of the intermediaries commented that its partners, largely comprising rural community-based housing providers, found that their applications for AHP funds are less competitive than in the past. The commenter suggested that rural applicants do not score as well as urban or suburban applicants, whose projects are of a larger scale and whose borrowers may have higher incomes and greater access to financial services. Several commenters provided input on the proposed definition of “rural area.” The nonprofit intermediary stated that, though it regards local government entities and communities as best equipped to define rural areas, it supported the proposed definition as a comprehensive and structured classification for rural areas under the AHP. It characterized the proposed definition as an enhancement that relies on a more accurate definition of rural territory and that minimizes misclassification of projects in suburban or exurban areas.
In contrast, a Bank and its Bank Advisory Council asserted that the proposed definition is overly restrictive within metropolitan areas because it excludes small towns that are truly rural in character. These commenters also stated that the AHP would not be able to maximally coordinate with USDA programs, as there are areas eligible for USDA assistance under USDA's definition of “rural area” that would be excluded under the proposed definition. In their proposal for project selection, the Banks recommended that each Bank have the authority to define “rural area.” One Bank commented that the proposed definition would be overly complicated for purposes of the AHP. The Bank indicated that the Banks designed their project selection proposal
FHFA is persuaded by commenters' concerns about the definition of “rural area” in the proposed rule. The Agency's aim of aligning, where appropriate, AHP definitions with those in other FHFA programs such as the Duty to Serve Program was not intended to constrain each Bank's flexibility to coordinate with other funding sources in responding to housing needs within its district. Continuing to give the Banks discretion to define “rural area” will allow them to align their Programs with other local and state funding programs for affordable housing. Accordingly, and consistent with the current regulation, the final rule authorizes each Bank to establish its own definition of “rural area.”
Several housing policy organizations, a CDFI, and two nonprofit developers generally supported this proposed scoring criterion. A nonprofit developer supported the scoring criterion but encouraged FHFA to allow AHP-funded projects targeting extremely low-income occupants to adjust their income targeting and rent restrictions in the event the project sponsor, through no fault of its own, loses its project-based operating subsidy. One of the housing policy organizations acknowledged the benefits of targeting extremely low-income households, but asserted that a minimum 20 percent threshold could be difficult to meet in states that do not have local or state rental housing development resources and access to federal project-based rental assistance programs. The commenter suggested use of a sliding points scale to encourage projects that target more units to extremely low-income people, up to a maximum of 20 or 25 percent of the units in a project, rather than establishing a minimum of 20 percent of the units. A nonprofit intermediary recommended a sliding points scale of up to 100 percent of the units in a project.
Other commenters opposed the proposed minimum 20 percent threshold. A Bank commented that it may render smaller projects financially infeasible. A CDFI trade organization stated that while targeting units for extremely low-income households is important, a minimum 20 percent threshold would create incentives for concentrations of populations of extremely low-income households, which would decrease residential economic diversity. A CDFI opposed a minimum 20 percent threshold on the grounds that projects that overestimate the number of extremely low-income units they can support may face financial instability. A trade organization supported the goal of targeting extremely low-income households, but stated that a minimum 20 percent threshold would not be feasible because the amount of AHP subsidy would generally be insufficient to offset the reduction in rents required to serve such households. The Banks stated that some projects may not be able to secure rent subsidies to support a minimum 20 percent threshold, making the projects financially infeasible.
The Banks' proposal on project selection does not include a scoring priority for housing for extremely low-income households. One Bank stated that the Banks could address this housing need under their Bank district priority scoring criterion, and that including a scoring criterion for housing for extremely low-income households would overlap with the scoring criterion for housing for other targeted populations. Another Bank stated that a scoring criterion for housing for extremely low-income households would be redundant with the income targeting scoring criterion. Multiple Banks expressed doubt that a project meeting a 20 percent threshold for extremely low-income households could demonstrate financial feasibility.
In summary, most commenters acknowledged the importance of targeting extremely low-income households, but objected to the proposed minimum 20 percent threshold. After consideration of the comments on the proposed threshold, including the recommendation for a sliding scale that would allow projects with some extremely low-income units but less than 20 percent to receive points, FHFA is persuaded that a 20 percent threshold may be too high in most circumstances. FHFA notes that the differing comments on the proposed threshold may stem from the differences in the financial viability of projects with extremely low-income units in different local housing markets. Therefore, in order to encourage targeting of extremely low-income households while providing adequate discretion to the Banks to take into account differences in housing markets among the Banks, the final rule includes a scoring criterion for projects targeting such households but also authorizes the Banks to establish their own minimum thresholds for the number of units a project is required to reserve for such households in order for the project to receive scoring points.
FHFA notes that most Banks have not allocated scoring points for projects specifically targeting extremely low-income households, which suggests that including this housing need under the underserved communities and populations regulatory priority would not be redundant. FHFA also notes that housing for extremely low-income households is an optional scoring category in the final rule, which Banks may choose to adopt in addition to the mandatory regulatory priority for income targeting for very low-income households.
As proposed, the final rule adopts a regulatory priority for creating economic opportunity, including the following eligible housing needs as scoring criteria: promotion of empowerment and residential economic diversity. FHFA may also identify other specific housing needs that facilitate economic opportunity as eligible under this regulatory priority by separate guidance, as new housing needs arise. The eligible housing needs are discussed further below.
A nonprofit intermediary that focuses on supportive housing strongly supported the addition of health services as an eligible empowerment activity. The commenter urged that the final rule include an explicit reference to mental and behavioral health services, which are mentioned in the case study cited in the NPRM. FHFA concurs in the importance of mental and behavioral health services and has added a reference to these services in connection with health services in the final rule. Consistent with the proposed rule, the reference to “welfare to work” in the current regulation is updated to “workforce preparation and integration” to broaden the scope beyond households receiving public assistance to include initiatives providing skills to those entering or re-entering the workforce. FHFA received no comments addressing any of the other proposed additions to the promotion of empowerment scoring criterion.
The proposed rule would have defined “residential economic diversity” as the financing of either affordable housing in a high opportunity area, or mixed-income housing in an area of concentrated poverty, with those terms defined in accordance with the Duty to Serve regulation and Evaluation Guidance. FHFA received a number of comments opposing adoption of the Duty to Serve definition. Two Banks and a Bank Advisory Council preferred to have discretion to adopt their own definitions in order to be able to align their Programs with the economic characteristics of their districts. One Bank recommended that FHFA expand the definition to explicitly include the development of mixed-income housing in middle- and high-income neighborhoods, in addition to low- and moderate-income neighborhoods, in order to provide the Banks flexibility to respond to the best evidence on the impact of living in high opportunity areas for low-income families. The Banks' proposal on project selection allows each Bank to define “high opportunity area,” and allows mixed-income housing in any area that the Bank designates. The Banks indicated that they prefer flexibility to align the residential economic diversity standards with those of state and local funders.
FHFA agrees with the comments that requiring use of the Duty to Serve definition for residential economic diversity under the AHP, especially the component definition of “high opportunity area,” could limit the extent to which the Bank are able to align their Programs, where appropriate, with residential economic diversity standards of state and local funders. The final rule, therefore, allows each Bank to define “high opportunity area.” In addition, FHFA is persuaded that mixed-income housing may, in certain Bank districts and under some circumstances, be beneficial in middle- and high-income neighborhoods. Accordingly, the final rule does not adopt the proposed requirement that the mixed-income housing be located in an area of concentrated poverty, and instead provides discretion to the Banks to designate the areas in which the mixed-income housing must be located.
In a change from the proposed rule, the final rule adopts community stability, including affordable housing preservation, as a regulatory priority. Community stability is a mandatory scoring criterion in the current regulation, but was not included as a regulatory priority in the proposed rule. Section 1291.5(d)(5)(ix) of the current regulation provides that a project may receive points under this scoring criterion if it promotes community stability, such as by rehabilitating vacant or abandoned properties, being an integral part of a neighborhood stabilization plan approved by a unit of state or local government, and not displacing low- or moderate-income households, or if such displacement will occur, assuring that such households will be assisted to minimize the impact of such displacement. The final rule adds, as an example of the types of projects that promote community stability, projects that preserve affordable housing. The final rule further modifies the current community stability scoring criterion by replacing the term “neighborhood stabilization plan” with “community development or economic development strategy,” and providing that such a strategy may be approved by an instrumentality of government. The final rule also retains the above-described non-displacement provision from the current regulation. In a change from the proposed rule, the final rule does not provide examples illustrating the types of projects that may be considered affordable housing preservation.
The proposed rule would have specified two eligible housing needs under the proposed affordable housing preservation regulatory priority: Affordable rental housing preservation and affordable homeownership preservation. Affordable rental housing preservation would have included housing needs such as: Existing affordable housing in need of rehabilitation as indicated by deteriorating physical condition, high vacancy rates, or poor financial performance; affordable rental housing with energy or water efficiency improvements (meeting the requirements in the Duty to Serve regulation); projects that received funding from certain government affordable rental housing programs specified under the Duty to Serve regulation,
In addition, the final rule provides that FHFA may also identify other mechanisms for affordable rental housing preservation or affordable homeownership preservation as eligible
A Bank commented that including affordable housing preservation as a regulatory priority would provide substantial encouragement to address this pressing need effectively. Other commenters indicated that the proposed affordable housing preservation definition is too narrow. A number of nonprofit developers stated that the proposed regulatory priority would apply only in very limited circumstances to affordable homeownership projects such as those where the AHP sponsor is engaged in owner-occupied rehabilitation or permanent affordability strategies. The commenters asserted that, although the types of affordable homeownership preservation identified in the proposed rule are viable and important strategies in many areas of the country, they may not be the most impactful or appropriate for many communities in each of the Banks' districts. The Bank Advisory Councils and a Bank noted that the proposed affordable housing preservation regulatory priority would not include projects that repurpose or adapt non-housing properties, such as former schools, industrial properties, or commercial properties, which would be covered under the current community stability scoring criterion. The Banks' proposal for project selection includes separate regulatory priorities for affordable housing preservation and community stability.
FHFA notes that the proposed regulatory priority for affordable housing preservation would have allowed the Banks to adopt other types of affordable housing preservation needs similar to those specified in the regulatory priority. However, FHFA acknowledges that replacing the current community stability scoring criterion with affordable housing preservation would have omitted strategies outside of affordable housing preservation that are important for addressing community stability, such as adaptive re-use and the development of infill housing that are included under the current community stability scoring criterion. Because affordable housing preservation is an important strategy for achieving community stability, the final rule adopts a regulatory priority for community stability that specifically includes affordable housing preservation. FHFA is not retaining the proposed definition of affordable housing preservation, which referenced specific programs and strategies included in the Duty to Serve regulation, in order to provide the Banks flexibility to include those or other housing needs under affordable housing preservation to meet the specific housing needs of their districts.
As proposed, the final rule eliminates the current mandatory scoring criterion for AHP subsidy per unit. This criterion favors more highly leveraged projects, such as LITHC projects and other large rental projects, where the AHP award is a smaller percentage of the total project development budget. A Bank may want to encourage AHP awards to projects that may not be able to leverage as much funding from other sources and, therefore, need deeper subsidy from the AHP. Eliminating this scoring criterion provides the Banks with more discretion to target the types of projects that best meet the housing needs in their districts. The Banks' proposal for project selection also eliminates this scoring criterion. Under the final rule, a Bank, in its discretion, could choose to include AHP subsidy per unit as a scoring criterion under its Bank district priorities category.
The final rule adopts a cumulative minimum points allocation of 50 points for the statutory and regulatory priorities, consistent with the cumulative minimum points allocation required for the statutory and regulatory priorities in the current regulation. The final rule permits the Banks to allocate the remaining maximum 50 points to affordable housing needs in the Banks' districts selected by the Banks. This is a modified version of the current regulation, which has two scoring categories of Bank district priorities. Under the first Bank district priority, a Bank must choose one or more housing needs from 12 specified eligible housing needs. Under the second Bank district priority, a Bank adopts one or more housing needs in the Bank's district identified by the Bank, which must be different from those chosen by the Bank under its first Bank district priority. The final rule essentially combines the current first and second Bank district priorities into one category under which a Bank may adopt specific district housing needs, for a maximum of 50 points. This will provide the Banks with additional flexibility to tailor their General Funds to meet specific housing needs in their districts.
Section 1291.27 of the final rule sets forth general requirements for scoring criteria for Targeted Funds. For each Targeted Fund established by a Bank, the Bank must include a minimum of three different scoring criteria, as established by the Bank, that allow the Bank to select applications that meet the specific affordable housing need or needs being addressed by the Targeted Fund. This requirement for at least three scoring criteria is consistent with the Banks' comment on the scoring criteria for Targeted Funds and is a change from the proposed rule, which did not include this requirement. As discussed under § 1291.25 above, the maximum points allocation for a single scoring criterion under a Targeted Fund is 50 points. These requirements should promote a robust competitive scoring process under the Targeted Fund.
The purpose of FHFA's proposal to require funding of alternates under the General Fund within one year of approval if previously committed AHP funds become available was to ensure that the Banks award the AHP funds to alternates in the General Fund rather than selecting General Fund alternates but transferring AHP funds from the General Fund to the Bank's Homeownership Set-Aside Programs or Targeted Funds instead. The Banks and a trade association opposed the proposal, noting that projects approved as alternates typically seek additional funding sources or change the scope of the development if approved as alternates, which may significantly change the structure of the projects. They pointed out that a mandatory funding requirement for such projects would require the Banks to first re-underwrite the projects to determine their satisfaction with the AHP eligibility requirements, including the need for AHP subsidy, which would increase the burden and costs to the Banks and the project sponsors. The Banks further stated that the proposal could require the Banks to fund alternates that do not serve the housing needs prioritized in the Banks' TCLPs or the proposed outcome requirements. The Banks and their Bank Advisory Councils urged FHFA to continue allowing the Banks the discretion to approve alternates for the General Fund, and to provide similar discretion to approve alternates for any Targeted Funds established by the Banks.
FHFA finds relevant the comments that previously committed AHP subsidies often do not become available until well after the conclusion of the AHP funding round, by which time alternates' applications may no longer reflect the current structure of the projects or their funding needs. Projects may also have received funding from other sources in the meantime to substitute for the AHP funding requested. The projects, thus, may no longer meet the AHP eligibility requirements, including the need for AHP subsidy, or may need to be re-scored due to the changes in the projects' structures and funding. Requiring re-underwriting, as well as possible re-scoring, of these projects may be unnecessary and burdensome in such circumstances. In addition, the Banks should not have to select alternates if they do not intend to fund these projects. Accordingly, the final rule revises the current regulation to make the approval of alternates discretionary rather than mandatory for the Banks, pursuant to a written policy established by the Bank, and to require the Bank to approve such alternates for funding within one year of approval if any previously committed AHP subsidies become available but only if the Bank has a policy to approve alternates for funding.
Where a Bank does not adopt a policy to approve alternates for its General Fund or any Targeted Funds, the Bank may use previously committed AHP subsidies that become available under the applicable Fund to address other district affordable housing needs through the Banks' Homeownership Set-Aside Programs or project modifications, as currently permitted, or through any Bank Targeted Funds. This may benefit Banks, for example, that wish to establish a Targeted Fund to address a federal- or state-declared disaster. It may also benefit Banks receiving requests for subsidy to assist households under their Homeownership Set-Aside Programs that exceed the current maximum annual allowable funding allocation of 35 percent, which is retained in the final rule.
The final rule relocates the provisions on modifications of approved AHP applications from current § 1291.5(f) to § 1291.29, with a number of clarifying and other changes.
A Bank provided comments on the good cause determination for modifying a project. The Bank noted that it considered remediation of project noncompliance, by itself, to be good cause for modification. The Bank stressed that a project that remains eligible for an award in its original AHP funding round after the modification should be eligible for a modification without having to cure noncompliance first, notwithstanding the changes made after application approval. The Bank emphasized the need to preserve the AHP's ability to accept and adapt to a project's needs. The Bank cited potential changes to green initiatives or the number of units reserved for homeless households that may or may not impact the project's budget or financing commitments, as examples of the types of changes justifying good cause for a modification. The Bank contended that a cure-first requirement would add unnecessary administrative costs for the Banks, the project sponsors, and the members when the projects are eligible for project modifications in any case based on their scoring, feasibility, and need for subsidy.
FHFA is not persuaded by the Bank's comments. Remediation of project noncompliance is not, in and of itself, good cause for a modification. There must be other reasonable justification for the modification, such as a change in market conditions, loss of committed funding to subsidize project rents, or loss of a major employer in the community that makes it difficult to find households at the incomes committed to in the project's AHP application to occupy the targeted units in the project. Otherwise, there would be less of an incentive to cure noncompliance if project sponsors knew they could simply request a modification of the project terms to no longer be in noncompliance. The final rule adds that the written analysis and justification for good cause must include why a cure of noncompliance was not successful or attempted.
Consistent with the proposed rule, the final rule also makes technical changes to the language in § 1291.29(b)(1) to clarify any ambiguity about the requirement that requests for subsidy increase modifications must also meet the requirements for approval applicable to other modifications in § 1291.29(a).
Consistent with the proposed rule, the final rule relocates the procedures for AHP funding from § 1291.5(g) of the current regulation to § 1291.30, with several changes.
Cancellation of AHP application approvals. The final rule clarifies in § 1291.30(b) and (c) that if a Bank cancels any AHP application approvals due to lack of progress towards draw-down and use of the AHP subsidies or noncompliance with AHP eligibility requirements, the requirement to make the AHP subsidies available to other AHP-eligible projects also includes the option to make the subsidies available to other AHP-eligible households.
Compliance upon disbursement of AHP subsidies. The final rule removes the reference to a change in the need for AHP subsidy in § 1291.30(c). This language is superfluous because as the rule states, at each disbursement of AHP subsidy, a project must meet all eligibility requirements, which include the need for AHP subsidy.
The final rule relocates § 1291.5(c)(13) of the current regulation, which addresses the requirements for lending and re-lending of AHP direct subsidies by revolving loan funds to § 1291.31,
To assist in anticipated future rulemaking on revolving loan funds under the AHP, FHFA specifically requested comments in the NPRM on why certain AHP scoring criteria have been difficult to meet, how the AHP retention periods could be satisfied, how AHP subsidy would be repaid in the event of project noncompliance, how the revolving loan fund can demonstrate a need for AHP subsidy, and the potential positive or negative impacts of eliminating the owner-occupied retention agreement requirement for revolving loan funds.
A nonprofit affordable housing intermediary expressed general support for increased use of AHP funds by revolving loan funds. A trade association for CDFIs stated that it would be particularly interested in working with FHFA and the Banks on expanding the use and impact of revolving loan funds. A Bank indicated that revolving loan funds can help meet the rehabilitation needs of owner-occupied units.
Several CDFIs and Banks commented that identifying specific project locations or addresses in AHP applications is problematic for revolving loan funds. One of the Banks stated that revolving loan fund applications cannot score sufficient points in categories tied to geography, inclusion of donated properties, economic diversity, or income targeting because the revolving loan funds cannot commit with certainty to the characteristics of a project or household as specific addresses or households are often unknown by the revolving loan fund at the time of AHP application.
A CDFI and a Bank suggested that applications for revolving loan funds should describe a pipeline of potential projects rather than discrete projects. Another CDFI suggested developing a scoring system based on a commitment to impact and homebuyer benefit, rather than on specific property addresses. The commenter also recommended establishing separate scoring criteria within the AHP scoring framework for revolving loan funds.
Two Banks reported not having received revolving loan fund applications for the AHP and encouraged FHFA to engage in a separate rulemaking for revolving loan funds. One of the Banks indicated that it was not aware of any revolving loan funds in the market that meet the current AHP regulatory requirements, and that it did not know how to make the AHP more amenable to revolving loan funds. The other Bank stated that the proposed outcome requirements would not necessarily facilitate the use of revolving loan funds.
In response to FHFA's request for comment, FHFA received several comments on whether organizations using sponsor-provided permanent financing models should be considered to be revolving loan funds. A national nonprofit opposed this, stating that it uses this model and would likely be excluded from competitive AHP Funds if it were treated exclusively as a revolving loan fund under any future AHP regulation. A Bank stated that, by definition, there are similarities between revolving loan funds and sponsor-provided permanent financing models since the funds of each are recycled on an ongoing basis. The Bank stated, however, that unlike a revolving loan fund, sponsor-provided permanent financing models are project specific and have readily available information that can be vetted during the application process.
FHFA is unclear on how to interpret the comments on identifying specific property locations in AHP applications. As discussed in the NPRM and above, the current regulation allows a Bank to score a revolving loan fund based on the specific criteria it establishes in its AHP application for its pipeline of projects, without having to actually identify specific projects in the AHP application. FHFA will consider the comments received on this issue, as well as comments received in response to its anticipated future rulemaking, in determining the treatment of revolving loan funds under the AHP regulation.
The final rule relocates § 1291.5(c)(14) of the current regulation, which addresses the requirements for use of AHP subsidies in loan pools, to § 1291.32, with a change to remove the requirement for retention agreements for owner-occupied rehabilitation in current § 1291.5(c)(14)(iii).
The current regulation establishes specific conditions under which a Bank may provide AHP subsidies under its Competitive Application Program for the origination of first mortgage loans or rehabilitation loans with subsidized interest rates to AHP-eligible household through a purchase commitment by an entity that will purchase and pool the loans. As stated in the NPRM, FHFA is not aware that any loan pools meeting these conditions have applied for AHP subsidy since adding the regulatory authority in 2006. FHFA is also not aware of any loan pools of this type currently existing in the housing market. FHFA specifically requested comments in the NPRM on whether there are loan pools currently operating in the market that meet the conditions in the regulation, how the loan pools are addressing current housing market needs, and the potential positive or negative impacts of eliminating the owner-occupied retention agreement requirement for loan pools. FHFA received only one comment on this section, from a Bank, which stated that it had no experience with loan pools meeting the AHP requirements.
FHFA anticipates engaging in a future rulemaking on loan pools with respect to the AHP, and will consider comments received in response to such rulemaking in determining the treatment of loan pools under the AHP regulation.
The final rule relocates § 1291.6(a) of the current regulation on the Bank establishment of Homeownership Set-Aside Programs to § 1291.40. As proposed, the final rule states that these programs are optional by adding that a Bank may establish such programs “in its discretion.” The final rule does not include the proposed requirement that a Bank's analyses for establishing such programs be included in its TCLP, as previously discussed under § 1290.6 (Bank Community Support Programs).
The final rule relocates § 1291.6(b) of the current regulation on eligible member applicants to § 1291.41, without change. No comments were received on this provision.
The final rule relocates § 1291.6(c) of the current regulation on the eligibility requirements for Homeownership Set-Aside Programs to § 1291.42, with several changes, as proposed.
A number of commenters generally supported raising the subsidy limit per household from $15,000 to $22,000. Some of the commenters provided reasons for their support that were cited by FHFA in the NPRM, specifically, that the proposed increase would provide additional flexibility, benefit homeowners in high-cost areas, and support owner-occupied rehabilitation and aging in place. The Banks, nonprofit organizations, and a CDFI supported the proposed annual upward HPI adjustments. The Banks stated that because the adjustment would measure average price fluctuations in the single-family housing market, it would provide insight to the Banks about whether they should increase their individual subsidy limit in housing markets that are becoming less affordable.
A state agency cautioned that the proposed increase in the subsidy limit could augment purchasers' ability to buy bigger houses, resulting in fewer grant recipients overall. A trade association stated that raising the raising the subsidy limit while also removing the requirement for owner-occupied retention agreements, as proposed, could increase the likelihood of the AHP subsidy being misused.
As discussed in the NPRM and above, the purpose of the increase in the subsidy limit is to respond to increases in the costs associated with buying or rehabilitating homes in high cost areas, as well as the high costs of certain types of rehabilitation generally. The increase also brings the subsidy limit in line with changes in the HPI since 2002. The HPI shows that $15,000 in January 2002 has approximately the same buying power as $21,500 today. FHFA acknowledges commenters' concern that Bank adoption of the proposed higher subsidy limit could result in fewer households receiving set-aside subsidies. However, because most Banks have established subsidy limits below the current $15,000 limit, FHFA believes that an increase in the subsidy limit to $22,000 is not likely to result in a significant overall reduction in the number of households assisted by the Banks under their set-aside programs.
The final rule relocates § 1291.6(d) of the current regulation, which addresses the approval of set-aside applications in accordance with the Banks' criteria governing the allocation of funds, to § 1291.43, without substantive change.
The final rule relocates § 1291.6(e) of the current regulation, which addresses the procedures for set-aside funding, to § 1291.44, without substantive change.
FHFA proposed a number of benchmarks for demonstrating compliance with the proposed outcome-based approach for project selections. As discussed in Section III.A. above, FHFA has decided not to adopt the proposed outcome-based approach t project selection in the final rule. Accordingly, the provisions in proposed Subpart E are not adopted in the final rule.
The proposed rule requested comments on whether this proposed streamlining of the Banks' initial monitoring requirements for LIHTC projects is reasonable, taking into consideration the risks of noncompliance and the costs of project monitoring. Commenters who commented on this proposal overwhelmingly supported it. A nonprofit affordable housing intermediary, a trade group, and the Banks stated generally that the proposal is reasonable and would not add any operational risks.
In 2017, 51 percent of AHP projects received LIHTC, similar to the percentage of AHP projects that received LIHTC in the previous several years. Thus, any amendments to the LIHTC
The Banks currently are permitted to review LIHTC back-up documentation at initial monitoring on a risk basis. Given the low risks of noncompliance by LIHTC projects, the Banks can establish review schedules for the back-up documentation that are not especially burdensome. Although the administrative burdens on the project sponsors to provide, and the Banks to review, LIHTC back-up documentation (other than rent rolls) at initial monitoring may not be significant, eliminating this requirement will benefit the Banks and project sponsors by reducing their administrative costs.
The FHFA guidance initially will specify the following federal government programs, which meet the standards outlined above, as eligible for the streamlined monitoring:
○ HUD Section 202 Program for the Elderly;
○ HUD Section 811 Program for Housing the Disabled;
○ USDA Section 515 Rural Multifamily Program; and
○ USDA Section 514 Farmworker Multifamily Program.
In 2017, approximately two-thirds of AHP projects received funding from other federal programs. As further discussed in the NPRM, FHFA reviewed the extent to which AHP projects also receive subsidies from HUD and USDA programs to assess the extent to which the Banks could reasonably rely on HUD and USDA monitoring for these projects. In 2017, 24 percent of AHP projects received HOME Program financing, 8 percent received Community Development Block Grant (CDBG) funds, and 9 percent received other federal financing, including from USDA. FHFA then analyzed the HUD and USDA programs to determine which programs have substantially equivalent rent, income, and retention requirements to the AHP, very low noncompliance rates, and where the monitoring entity has demonstrated and continues to demonstrate effective monitoring of a respective program. The Agency determined that the four programs noted above meet these standards. FHFA has not identified other programs that meet these standards at this time. The proposed rule requested comments on whether this proposed reduction of the Banks' initial and long-term monitoring requirements for AHP projects funded by certain other government programs is reasonable, taking into consideration the risks of noncompliance and the costs of project monitoring. Many commenters, including trade groups, intermediaries, and nonprofit developers supported reliance on the monitoring of other federal funders of AHP projects. The Banks similarly supported the proposed changes to the initial and long-term monitoring requirements that would align them with the monitoring requirements of other federal programs, stating that they present very little risk. An intermediary supported reduced monitoring for projects involving USDA Section 514 and Section 515 properties because it would decrease regulatory and reporting burden. A CDFI supported reduced monitoring because it decreases the final burden on project sponsors, members, and the Banks.
A nonprofit organization opposed reduction to the monitoring requirements for income and rental validation at initial monitoring. The commenter stated that projects are most likely to go out of compliance during the initial lease-up phase, and that Bank review at initial monitoring would likely ensure that the project remained compliant in the long term. The commenter did not identify any specific information to justify its position. Two policy organizations encouraged FHFA to continue to evaluate other federal programs such as HOME, CDBG, Rental Assistance Demonstration, and Section 8 Project-Based Rental Assistance, to determine whether the programs could be included in the guidance.
It is reasonable to allow the Banks to conduct less monitoring of AHP projects funded by any of the four programs to be included in the FHFA guidance, given the low noncompliance risk to the AHP due to the overlap of the AHP monitoring requirements with USDA and HUD's monitoring practices, the substantially equivalent income, rent and retention requirements, and the programs' very low noncompliance rates. Eliminating the requirement to provide and review back-up documentation (other than rent rolls) for such projects at initial monitoring, and eliminating the requirement to provide and review any back-up documentation (including rent rolls) for such projects during long-term monitoring, will also benefit project sponsors and the Banks by reducing their administrative costs, albeit modestly for the Banks.
FHFA will continue to assess the programs recommended by the commenters, as well as other possible
As discussed in the NPRM, during long-term monitoring, the Banks are required to monitor projects for compliance with the household income targeting and rent commitments in their AHP applications. This information may not reveal operational and viability challenges the projects are experiencing. By obtaining additional information from project sponsors about the project, the Banks may be able to work with other funders to address project concerns and any noncompliance, including attempting remediation through workout strategies or recovery of AHP subsidies for noncompliance. The requirement for enhanced certifications modestly increases the reporting requirements for project sponsors and Banks that are not currently requiring such enhanced certifications. FHFA did not receive any comments on the proposed enhanced certifications.
The final rule relocates the monitoring provisions for the Homeownership Set-Aside Program from current § 1291.7(b) to § 1291.51. The proposed rule would have removed the requirement in current § 1291.7(b)(ii) for verifying that AHP-assisted owner-occupied units are subject to retention agreements because it would have eliminated the requirement for owner-occupied retention agreements. However, as discussed in Section III.D. above, the final rule eliminates the requirement for owner-occupied retention agreements only where the household uses the AHP subsidy solely for owner-occupied rehabilitation. Accordingly, the final rule retains the current verification requirement for owner-occupied retention agreements where the households uses the AHP subsidy for purchase of the unit, or for purchase of the unit in conjunction with rehabilitation.
The final rule relocates the provisions on remedial actions for AHP noncompliance from § 1291.8 of the current regulation to Subpart F. As proposed, the final rule addresses each type of noncompliance—project sponsor or owner, member, or Bank—in a separate section so that the responsibilities and potential liabilities of each party are clear. As proposed, the final rule also makes substantive changes to the order in which certain remedial actions must be taken, with certain clarifications to the provision on curing noncompliance. The changes are further discussed below.
Consistent with the proposed rule, § 1291.60 of the final rule addresses remedial actions for AHP project noncompliance. The language is revised and streamlined to provide greater clarity on the scope of the section and the responsibilities of the parties. As discussed extensively in Section III.E. above, the final rule adopts certain substantive changes by establishing a sequence of remedial steps for a Bank to follow before recovering AHP subsidy. The final rule also clarifies factors for Bank consideration in determining whether to accept less than the full amount of AHP subsidy due. Because the final rule is not adopting the proposed outcome-based requirements, the final rule does not adopt proposed § 1291.65, which would have provided for a number of remedial actions that FHFA could take to address Bank noncompliance with the outcome requirements, including housing plans and reimbursement of the AHP Fund.
The changes in the final rule that are not discussed in Section III.E. above, are discussed below.
Section 1291.60(c)(2) of the final rule specifies that if the demand for repayment of the full amount of subsidy due is unsuccessful, then the Bank, or the member if delegated the responsibility and in consultation with the Bank, is required to make reasonable efforts to collect the subsidy from the project sponsor or owner, which may include settlement for less than the full amount of subsidy due. As proposed, the final rule clarifies that members would carry out these efforts in consultation with the Bank, consistent with current practice.
The final rule also retains the proposal to clarify that the facts and circumstances to consider in determining whether to settle include not only the degree of culpability of the noncomplying parties and the extent of the Bank's or member's collection efforts, as provided in the current regulation, but also the financial capacity of the project sponsor or owner, assets securing the AHP subsidy, and other assets of the project sponsor or owner. FHFA specifically requested comments on whether the facts and circumstances included in the proposed rule are appropriate for consideration during reasonable collection efforts, and whether there are other factors that should be considered.
The Banks, a Bank Advisory Council, a trade association, and a nonprofit organization opposed the proposal on several different bases. The Banks stated that the facts and circumstances in the proposed rule were worthy but represented just a few of the considerations used in the subsidy recapture process. The Banks requested, therefore, that FHFA not codify the factors in the regulation, but rather allow each Bank to evaluate the fact-specific scenarios of a subsidy recapture and settlement process based on its own guidelines.
A Bank Advisory Council and a nonprofit organization stated that expanding the requirements of reasonable collection efforts to include the Bank's review of the financial capacity and assets of both the project sponsor and project owner would increase the Bank's administrative burden. The commenters stated that the proposal could decrease the number of project sponsors, project owners, and members willing to submit applications for AHP subsidy. Several commenters warned that the proposed requirements regarding the repayment of AHP subsidy would require project sponsors to act as guarantors, responsible for repaying all or a portion of the AHP subsidy due to noncompliance. A Bank and a trade association opposed the proposal, stating that it would effectively make AHP funds recourse obligations of the project sponsor and project owner, although affordable rental housing financing, particularly for LIHTC projects, is normally nonrecourse, and was not appropriate.
Settlement represents the last resort in a series of steps that a Bank initiates to remedy a project's noncompliance, in cases where the noncompliance cannot be eliminated through a cure or modification and the demand for full repayment of the AHP subsidy is unsuccessful. It is reasonable, in these rare instances, for a Bank to take into account the financial capacity and assets of both the project sponsor and owner to determine whether they have the ability to repay a portion of the AHP subsidy. The Bank would not require repayment of subsidy if they do not have resources to do so. The requirement for the project sponsor or owner to repay all or a portion of the AHP subsidy in the case of noncompliance that cannot be resolved through a cure or modification is a longstanding requirement of the AHP and, therefore, is unlikely to decrease the number of applications for AHP subsidy. For these reasons, the final rule retains the proposed clarifications described above.
As proposed, the final rule also eliminates current § 1291.8(d)(2), which provided the Banks the option of seeking FHFA's prior approval for a proposed subsidy settlement. As discussed in the NPRM, only one Bank has used this option and it was for two similar cases. The Banks may enter into subsidy settlements, in their discretion, provided the settlements are supported by reasonable justifications. The Banks have made these types of business decisions for many years without seeking prior FHFA approval. Moreover, the final rule further clarifies the factors the Banks should consider in deciding whether to settle with a project sponsor or project owner. FHFA did not receive any comments on this provision.
Section 1291.61 of the final rule addresses member noncompliance, which is addressed in § 1291.8(b)(1) of the current regulation. The final rule clarifies the language to focus on noncompliance with a member's AHP application or the AHP regulation as a result of the member's actions or omissions, consistent with similar language applicable to the Banks and project sponsors in the current regulation and Subpart F, rather than on impermissible use of the subsidy by the member. FHFA did not receive any comments on this section.
As proposed, the final rule relocates § 1291.8(e) of the current regulation, which addresses circumstances where a Bank is required to reimburse its AHP fund, to § 1291.62, with no substantive changes. FHFA did not receive any comments on this section.
Consistent with the proposed rule, the final rule relocates § 1291.8(g) of the current regulation, which addresses suspension or debarment of members, project sponsors, or project owners, to § 1291.63, without change. FHFA did not receive any comments on this section.
The final rule relocates § 1291.8(h) of the current regulation, which addresses transfer of a Bank's Program to another Bank in the event of mismanagement of its Program, to § 1291.65, with no changes. The proposed rule did not propose any changes to this provision, and no comments were received on it.
As proposed, the final rule rescinds current § 1291.8(i) because the provision refers to a now-repealed Finance Board regulatory provision that was intended to establish a formal process for review by the Board of Directors of the Finance Board of certain types of supervisory decisions, which FHFA opted not to adopt.
Consistent with the proposed rule, the final rule relocates § 1291.12 of the current regulation, which addresses the requirements for an Affordable Housing Reserve Fund, to § 1291.70. The final rule revises the current provision by requiring that amounts remaining unused or uncommitted at year-end are deemed to be used or committed if, in combination with AHP funds that have been returned to the Bank or de-committed from canceled projects, they are insufficient to fund: (1) AHP application alternates in the Bank's final funding round of the year for its General Fund or any Targeted Funds, if the Bank has a policy to approve alternates for funding under such Funds; (2) pending applications for funds under any Bank Homeownership Set-Aside Programs; and (3) project modifications for AHP subsidy increases approved by the Bank. The proposed rule would have prioritized the General Fund and then any Targeted Funds. The final rule does not adopt this proposed change in order to provide the Banks with flexibility on how to use such funds. FHFA did not receive any comments on this proposed revision. FHFA notes that in the history of the Program, there has never been a need to establish an Affordable Housing Reserve Fund.
Section 1313(f) of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 requires the Director of FHFA, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises (Fannie Mae and Freddie Mac) as they relate to the Banks' cooperative ownership structure, mission of providing liquidity to members, affordable housing and community development mission, capital structure, and joint and several liability. The final rule applies only to the Banks. It amends the current AHP regulation to revise the scoring criteria governing the selection of AHP award recipients; provide additional authority to the Banks regarding certain Program operations, streamline project monitoring requirements, clarify various parties' responsibilities regarding AHP noncompliance, eliminate the requirement for retention agreements for AHP subsidy used to rehabilitate owner-occupied units without an accompanying purchase, and clarify certain operational requirements. In preparing this final rule, the Director considered the differences between the Banks and the Enterprises as they relate to the above factors, and determined that the amendments in the final rule are positive for the affordable housing mission of the Banks and neutral regarding the other statutory factors. FHFA requested comments in the NPRM regarding whether differences related to those factors should result in any revisions to the proposed rule. No significant relevant comments were received.
The Paperwork Reduction Act of 1995 (PRA)
As revised by the final rule, part 1291 contains six ICs: (1) Competitive applications for AHP subsidy under General Funds and Targeted Funds; (2) compliance submissions for approved General Fund and Targeted Fund projects at AHP subsidy disbursement; (3) modification requests for approved General Fund and Targeted Fund projects; (4) initial monitoring submissions for approved General Fund and Targeted Fund projects; (5) long-term monitoring submissions for approved General Fund and Targeted Fund projects; and (6) Homeownership Set-Aside Program applications and certifications. These ICs are substantially the same as the six currently-approved ICs in existing part 1291, although ICs #1 through #5 have
As required by 5 CFR 1320.8(d)(3), the
In compliance with 5 CFR 1320.11(b), FHFA submitted the proposed rule and an analysis of the revised ICs to OMB for review simultaneously with the publication of the proposed rule. On June 6, 2018, OMB issued a Notice of Action (NOA) to FHFA, pursuant to 5 CFR 1320.11(c), stating that OMB had not yet approved the revised ICs and that the terms of the prior renewal of the control number remained in effect. The NOA instructed FHFA to address all comments received in response to the proposed rule's PRA statement. Under 5 CFR 1320.11(f), FHFA must explain how any IC contained in the final rule responds to any comments received from OMB or the public and must identify and explain any modifications made in the final rule, or explain why it rejected the comments. Aside from the NOA filed by OMB, FHFA received no comments in response to the PRA statement in the proposed rule.
Although not generated by PRA comments or concerns, there are a number of substantive differences between the proposed and final rules, as detailed above. While some of these differences touch upon information collection requirements, FHFA has concluded that the only difference that will have a material effect on the paperwork burden imposed by the final rule is the decision not to adopt the proposed increase, from 35 to 40 percent, in the maximum percentage of AHP funds Banks may allocate to their Homeownership Set-Aside programs. In estimating the paperwork burden that IC #6 would have imposed under the proposed rule, FHFA anticipated that the increase in the maximum allocation percentage, in combination with generally higher Bank incomes, would lead the average annual number of Homeownership Set-Aside Program applications and certifications to increase significantly, to 15,000 from the 13,000 that FHFA had estimated in connection with the prior renewal of the control number. This led FHFA to estimate that the average annual burden imposed by IC #6 would increase from 65,000 to 75,000 hours under the proposed rule. Because the final rule does not implement the proposed maximum allocation percentage increase, however, FHFA now anticipates that the Banks will receive an average of only 13,260 Homeownership Set-Aside Program applications and certifications annually. This figure represents a two percent increase from the most recent estimate of 13,000, to reflect a slightly higher level of Homeownership Set-Aside Program activity arising from anticipated higher Bank incomes over the next three years. As a result of this change, FHFA has modified its burden estimate for revised IC #6 downward to 66,300 hours from the 75,000 hours reflected in the proposed rule's PRA statement (a decrease of 8,700 hours).
Aside from the modification of the burden estimate for IC #6 discussed above, the burden estimates for, and material details regarding, each revised IC remain as described in the PRA statement for the proposed rule. The final burden estimates for revised part 1291 appear below.
FHFA estimates that the average total burden that will be imposed upon Bank members and AHP project sponsors and owners annually over the next three years by the six ICs in revised part 1291 will be 118,905 hours. This represents an increase of 3,155 total hours over the estimate of 115,750 hours made in connection with the most recent renewal of the OMB control number. The burden estimate for each IC and the manner in which the estimate was calculated are set forth below.
FHFA estimates that Banks will receive an annual average of 1,485 competitive applications for subsidy from Bank members on behalf of project sponsors and owners under their General Funds and Targeted Funds over the next three years and that it will take an average of 24 hours to prepare and submit each application, resulting in an estimated annual average burden of 35,640 hours for IC #1.
FHFA estimates that the Banks will receive an annual average of 715 submissions over the next three years from Bank members and project sponsors verifying that projects approved under the Banks' General Funds and Targeted Funds continue to comply with the regulatory eligibility requirements and all commitments made in the approved AHP applications at the time of subsidy disbursement and that it will take an average of one hour to prepare each submission, resulting in an estimated annual average burden of 715 hours for IC #2.
FHFA estimates that Banks will receive an annual average of 290 requests from Bank members and project sponsors for modifications to projects that have been approved under the Banks' AHP competitive application programs over the next three years and that it will take an average of 2.5 hours to prepare each request, resulting in an estimated annual average burden of 725 hours for IC #3.
FHFA estimates that Banks will receive an annual average of 510 submissions from Bank members and project sponsors of documentation required by the Banks as part of their initial monitoring of in-progress and recently completed projects approved under their General Funds and Targeted Funds over the next three years and that it will take an average of 4.5 hours to prepare each submission, resulting in an estimated annual average burden of 2,295 hours for IC #4.
FHFA estimates that Banks will receive an annual average of 4,900 submissions from Bank members and project sponsors of documentation required by the Banks as part of their long-term monitoring of completed projects approved under their General
FHFA estimates that Banks will receive from Bank members an annual average of 13,260 applications and required certifications for AHP direct subsidies under their Homeownership Set-Aside Programs and that it will take an average of 5 hours to prepare each submission, resulting in an estimated annual average burden of 66,300 hours for IC #6.
The Regulatory Flexibility Act
In accordance with the Congressional Review Act,
Banks and banking, Credit, Federal home loan banks, Housing, Mortgages, Reporting and recordkeeping requirements.
Community development, Credit, Federal home loan banks, Housing, Low- and moderate-income housing, Mortgages, Reporting and recordkeeping requirements.
For the reasons stated in the Preamble, FHFA amends parts 1290 and 1291 of Title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 1430(g).
(a) * * *
(5) Include an annual Targeted Community Lending Plan approved by the Bank's board of directors and subject to modification. The Bank's board of directors shall not delegate to a committee of the board, Bank officers, or other Bank employees the responsibility to adopt or amend the Targeted Community Lending Plan. The Targeted Community Lending Plan shall:
(i) Reflect market research conducted in the Bank's district;
(ii) Describe how the Bank will address identified credit needs and market opportunities in the Bank's district for targeted community lending;
(iii) Be developed in consultation with (and may only be amended after consultation with) its Advisory Council and with members, housing associates, and public and private economic development organizations in the Bank's district;
(iv) Establish quantitative targeted community lending performance goals;
(v) Identify and assess significant affordable housing needs in its district that will be addressed through its Affordable Housing Program under 12 CFR part 1291, reflecting market research conducted or obtained by the Bank; and
(vi) For any Targeted Funds established by the Bank under its Affordable Housing Program, specify, from among the identified affordable housing needs, the particular affordable housing needs the Bank plans to address through such Targeted Funds.
(c)
From December 28, 2018 to December 31, 2020, a Bank shall comply with either prior part 1290 (in 12 CFR part 1290 (January 1, 2018 edition)) or this part 1290. On and after January 1, 2021, a Bank shall comply with this part 1290.
12 U.S.C. 1430(j).
As used in this part:
(1) The rent charged to a household for a unit that is to be reserved for occupancy by a household with an income at or below 80 percent of the median income for the area, does not exceed 30 percent of the income of a household of the maximum income and size expected, under the commitment made in the AHP application, to occupy the unit (assuming occupancy of 1.5 persons per bedroom or 1.0 persons per unit without a separate bedroom); or
(2) The rent charged to a household, for rental units subsidized with Section 8 assistance under 42 U.S.C. 1437f or subsidized under another assistance program where the rents are charged in the same way as under the Section 8 program, if the rent complied with this definition at the time of the household's initial occupancy and the household continues to be assisted through the Section 8 or another assistance program, respectively.
(1) In the case of owner-occupied housing, the household's income may not exceed 80 percent of the median income for the area; and
(2) In the case of rental housing, the household's income in at least 20 percent of the units may not exceed 50 percent of the median income for the area.
(1) Reasonable and customary costs paid by the household in connection with the purchase of the unit (including real estate broker's commission, attorney's fees, and title search fees);
(2) Any down payment paid in connection with the household's purchase of the unit;
(3) The cost of any capital improvements made after the household's purchase of the unit until the time of the subsequent sale, transfer, assignment of title or deed, or refinancing; and
(4) The amount of principal on any mortgage senior to the AHP subsidy lien or other legally enforceable AHP subsidy repayment obligation repaid by the household.
(1) The median income for the area, as published annually by HUD;
(2) The median income for the area obtained from the Federal Financial Institutions Examination Council;
(3) The applicable median family income, as determined under 26 U.S.C. 143(f) (Mortgage Revenue Bonds) and published by a state agency or instrumentality;
(4) The median income for the area, as published by the United States Department of Agriculture; or
(5) The median income for an applicable definable geographic area, as published by a federal, state, or local government entity, and approved by FHFA, at the request of a Bank, for use under the AHP.
(1) In the case of a sale, transfer, or assignment of title or deed of an AHP-assisted unit by a household during the AHP five-year retention period, the sales price minus reasonable and customary costs paid by the household in connection with the transaction (including real estate broker's commission, attorney's fees, and title search fees) and outstanding debt superior to the AHP subsidy lien or other legally enforceable AHP subsidy repayment obligation;
(2) In the case of a refinancing of an AHP-assisted unit by a household during the AHP five-year retention period, the principal amount of the new mortgage minus reasonable and customary costs paid by the household in connection with the transaction (including attorney's fees and title search fees) and the principal amount of the refinanced mortgage.
(1) Five years from closing for an AHP-assisted owner-occupied unit where the AHP subsidy is used for purchase of the unit or for purchase in conjunction with rehabilitation of the unit; and
(2) Fifteen years from the date of completion for a rental project.
(1) Has an ownership interest (including any partnership interest), as defined by the Bank in its AHP Implementation Plan, in a rental project;
(2) Is integrally involved, as defined by the Bank in its AHP Implementation Plan, in an owner-occupied project, such as by exercising control over the planning, development, or management of the project, or by qualifying borrowers and providing or arranging financing for the owners of the units;
(3) Operates a loan pool; or
(4) Is a revolving loan fund.
(1) A direct subsidy, provided that if a direct subsidy is used to write down the interest rate on a loan extended by a member, sponsor, or other party to a project, the subsidy must equal the net present value of the interest foregone from making the loan below the lender's market interest rate; or
(2) The net present value of the interest revenue foregone from making a subsidized advance at a rate below the Bank's cost of funds.
(a)
(b)
Each Bank shall contribute annually to its Program the greater of:
(a) 10 percent of the Bank's net earnings for the previous year; or
(b) That Bank's pro rata share of an aggregate of $100 million to be contributed in total by the Banks, such proration being made on the basis of the net earnings of the Banks for the previous year, except that the required annual AHP contribution for a Bank shall not exceed its net earnings in the previous year.
(a)
(b)
(i) Severely depressed Bank earnings;
(ii) A substantial decline in Bank membership capital; and
(iii) A substantial reduction in Bank advances outstanding.
(2)
(i) A change in the terms of advances to members that is not justified by market conditions;
(ii) Inordinate operating and administrative expenses; or
(iii) Mismanagement.
Each Bank, after consultation with its Advisory Council and pursuant to written policies adopted by the Bank's board of directors, shall meet the following requirements for allocation of its required annual AHP contribution.
(a)
(b)
(c)
(1) 20 percent, in the aggregate, of its required annual AHP contribution to any Targeted Funds;
(2) 30 percent, in the aggregate, of its required annual AHP contribution to any Targeted Funds, provided that it allocated at least 20 percent, in the aggregate, of its required annual AHP contribution to one or more Targeted Funds in any preceding year; or
(3) 40 percent, in the aggregate, of its required annual AHP contribution to any Targeted Funds, provided that it allocated at least 30 percent, in the aggregate, of its required annual AHP contribution to one or more Targeted Funds in any preceding year.
(d)
(e)
(a)
(2)
(3)
(b)
(1) The applicable median income standard or standards adopted by the Bank consistent with the definition of “median income for the area” in § 1291.1.
(2) For the General Fund established by the Bank pursuant to § 1291.20(a), the Bank's requirements for the General Fund, including the Bank's scoring methodology, including its scoring tie-breaker policy adopted pursuant to §§ 1291.25(c) and 1291.28(c), and any policy on approving AHP application alternates for funding pursuant to §§ 1291.25(c)(6) and 1291.28(b).
(3) For each Targeted Fund established by the Bank, if any, pursuant to § 1291.20(b), the Bank's requirements for the Targeted Fund, including the Bank's scoring methodology for each Fund, including its scoring tie-breaker policy adopted pursuant to §§ 1291.25(c) and 1291.28(c), and any policy on approving AHP application alternates for funding pursuant to §§ 1291.25(c)(6) and 1291.28(b), and the parameters adopted pursuant to § 1291.20(b)(2).
(4) The Bank's policy on how it will determine under which Fund to approve an application for the same project that is submitted to more than one Fund at a Bank in a calendar year and scores high enough to be approved under each Fund, pursuant to § 1291.28(d).
(5) For each Homeownership Set-Aside Program established by the Bank, if any, pursuant to § 1291.40, the Bank's requirements for the program, including the Bank's application and subsidy disbursement methodology.
(6) The Bank's retention agreement requirements for projects and households under its General Fund, any Targeted Funds, and any Homeownership Set-Aside Programs, pursuant to § 1291.15(a)(7) and (8), including the proxy or proxies selected by the Bank for determining a subsequent purchaser's income pursuant to FHFA guidance under § 1291.15(a)(7)(ii)(B).
(7) The Bank's standards for approving a relocation plan for current occupants of rental projects pursuant to § 1291.23(a)(2)(ii)(B).
(8) Any optional Bank district eligibility requirements adopted by the Bank pursuant to § 1291.24(c).
(9) The Bank's requirements for funding revolving loan funds, if adopted by the Bank pursuant to § 1291.31;
(10) The Bank's requirements for funding loan pools, if adopted by the Bank pursuant to § 1291.32;
(11) The Bank's requirements for monitoring under its General Fund and any Targeted Funds and Homeownership Set-Aside Programs pursuant to §§ 1291.50 and 1291.51.
(12) The Bank's requirements, including time limits, for re-use of repaid AHP direct subsidy in the same project, if adopted by the Bank pursuant to § 1291.64(b).
(c)
(d)
(e)
(a)
(2) Each Bank shall solicit nominations for membership on the Advisory Council from community and not-for-profit organizations pursuant to a nomination process that is as broad and as participatory as possible, allowing sufficient time for responses.
(3) The Bank's board of directors shall appoint Advisory Council members from a diverse range of organizations so that representatives of no one group constitute an undue proportion of the membership of the Advisory Council, giving consideration to the size of the Bank's district and the diversity of low- and moderate-income housing and community lending needs and activities within the district.
(b)
(c)
(d)
(ii) The Advisory Council's advice shall include recommendations on:
(A) The Bank's Targeted Community Lending Plan, and any amendments thereto, pursuant to 12 CFR 1290.6(a)(5)(iii);
(B) The amount of AHP funds to be allocated to the Bank's General Fund and any Targeted Funds and Homeownership Set-Aside Programs, including how the set-aside funds should be apportioned under the one-third funding allocation requirement in § 1291.12(b);
(C) The AHP Implementation Plan and any subsequent amendments thereto;
(D) The Bank's scoring methodologies, related definitions, and any additional optional district eligibility requirements for the General Fund and any Targeted Funds; and
(E) The eligibility requirements and any priority criteria for any Homeownership Set-Aside Programs.
(2)
(3)
(ii) Within 30 days after the date the Advisory Council's annual analysis is submitted to FHFA, the Bank shall publish the analysis on its publicly available website.
(e)
(f)
(a)
(1)
(2)
(3)
(ii)
(4)
(ii)
(B)
(5)
(ii)
(6)
(ii)
(7)
(i)
(ii)
(A) The unit was assisted with a permanent mortgage loan funded by an AHP subsidized advance;
(B) The subsequent purchaser, transferee, or assignee is a low- or moderate-income household, as determined by the Bank. For any sale, transfer, or assignment that occurs after the date established by FHFA in guidance on the use of proxies, the Bank or its designee shall determine the household's income using one or more proxies that are reliable indicators of the subsequent purchaser's income, which may be selected by the Bank pursuant to the FHFA guidance and shall be included in the Bank's AHP Implementation Plan, unless documentation demonstrating that household's actual income is available. The Bank or its designee is not required to request or obtain such documentation, but must use it in lieu of a proxy if available;
(C) The amount of the AHP subsidy that would be required to be repaid in accordance with the calculation in paragraph (a)(7)(v) of this section is $2,500 or less; or
(D) Following a refinancing, the unit continues to be subject to a deed restriction or other legally enforceable retention agreement or mechanism described in this paragraph (a)(7);
(iii)
(A) To the Bank. If the Bank has not authorized re-use of the repaid AHP subsidy or has authorized re-use of the repaid subsidy but not retention of such repaid subsidy by the member or project sponsor pursuant to § 1291.64(b) of this part, or has authorized retention and re-use of such repaid subsidy by the member or project sponsor pursuant to such section and the repaid subsidy is not re-used in accordance with the requirements of the Bank and such section; or
(B) To the member or project sponsor. To the member or project sponsor for re-use by such member or project sponsor, if the Bank has authorized retention and re-use of such subsidy by the member or project sponsor pursuant to § 1291.64(b);
(iv)
(v)
(A) The AHP subsidy, reduced on a pro rata basis per month until the unit is sold, transferred, or its title or deed transferred, or is refinanced, during the AHP five-year retention period; or
(B) Any net proceeds from the sale, transfer, or assignment of title or deed of the unit, or the refinancing, as applicable, minus the AHP-assisted household's investment.
(8)
(i)
(ii)
(iii)
(A) The project continues to be subject to a deed restriction or other legally enforceable retention agreement or mechanism incorporating the income-eligibility and affordability restrictions committed to in the
(B) If authorized by the Bank, in its discretion, the households are relocated, due to the exercise of eminent domain, or for expansion of housing or services, to another property that is made subject to a deed restriction or other legally enforceable retention agreement or mechanism incorporating the income-eligibility and affordability restrictions committed to in the approved AHP application for the remainder of the AHP 15-year retention period; and
(iv)
(9)
(10)
(ii)
(iii)
(A) Repay to the Bank that portion of the advance used to make the loan or loans to the project, and be subject to a fee imposed by the Bank sufficient to compensate the Bank for any economic loss the Bank experiences in reinvesting the repaid amount at a rate of return below the cost of funds originally used by the Bank to calculate the interest rate subsidy incorporated in the advance; or
(B) Continue to maintain the advance outstanding, subject to the Bank resetting the interest rate on that portion of the advance used to make the loan or loans to the project to a rate equal to the cost of funds originally used by the Bank to calculate the interest rate subsidy incorporated in the advance.
(b)
(2)
(c)
(a)
(2) If a Bank director or employee, or such person's family member, has a financial interest in, or is a director, officer, or employee of an organization involved in, an AHP project such that he or she is subject to the requirements in paragraph (a)(1) of this section, such person shall not participate in or attempt to influence decisions by the Bank regarding the evaluation, approval, funding, monitoring, or any remedial process for such project.
(b)
(2) If an Advisory Council member, or such person's family member, has a financial interest in, or is a director, officer, or employee of an organization involved in, an AHP project such that he or she is subject to the requirements in paragraph (b)(1) of this section, such person shall not participate in or attempt to influence decisions by the Bank regarding the approval for such project.
(c)
(a)
(2)
(b)
(i) One Targeted Fund;
(ii) Two Targeted Funds to be administered in the same calendar year,
(iii) Three Targeted Funds to be administered in the same calendar year, provided that the Bank administered at least two Targeted Funds in any preceding year.
(2)
(ii) A Bank may not adopt eligibility requirements for its Targeted Funds except as specifically authorized in this part.
(a)
(b)
(2)
(i) Provide audited financial statements that its operations are consistent with sound business practices; and
(ii) Demonstrate the ability to re-lend AHP subsidy repayments on a timely basis and track the use of the AHP subsidy.
(3)
(i) Provide evidence of sound asset/liability management practices;
(ii) Provide audited financial statements that its operations are consistent with sound business practices; and
(iii) Demonstrate the ability to track the use of the AHP subsidy.
(a)
(b)
(1) Determine that the proposed AHP project meets the eligibility requirements of this part; and
(2) Evaluate the application pursuant to the scoring methodology adopted by the Bank pursuant to §§ 1291.25, 1291.26, and 1291.27, as applicable.
(c)
Projects receiving AHP subsidies pursuant to a Bank's General Fund and any Targeted Funds must meet the following eligibility requirements:
(a)
(1)
(2)
(i)
(ii)
(B) If the project has a relocation plan for current occupants that is approved by one of its federal, state, or local government funders, or a reasonable relocation plan for current occupants that is otherwise approved by the Bank according to standards included in the Bank's AHP Implementation Plan, a household may have an income meeting the income targeting commitments upon initial occupancy of the rental unit after completion of the purchase or rehabilitation.
(b)
(2)
(c)
(d)
(2)
(e)
(a)
(1)
(2)
(3)
(ii)
(iii)
(4)
(B) For purposes of determining the reasonableness of a developer's fee for a project as a percentage of total development costs, a Bank may, in its discretion, include estimates of the market value of in-kind donations and volunteer professional labor or services (excluding the value of sweat equity) committed to the project as part of the total development costs.
(ii)
(5)
(6)
(i) Such costs are incurred in connection with counseling of homebuyers who actually purchase an AHP-assisted unit; and
(ii) The cost of the counseling has not been covered by another funding source, including the member.
(7)
(8)
(ii) Where an AHP subsidized advance is provided to a project, the net present value of the interest revenue foregone from making a subsidized advance at a rate below the Bank's cost of funds shall be determined as of the earlier of the date of disbursement of the subsidized advance or the date prior to disbursement on which the Bank first manages the funding to support the subsidized advance through its asset/liability management system, or otherwise.
(b)
(1)
(i) The project is in financial distress that cannot be remedied through a project modification pursuant to § 1291.29;
(ii) The prepayment of the subsidized advance is necessary to retain the project's affordability and income targeting commitments;
(iii) Subsequent to such prepayment, the project will continue to comply with the terms of the approved AHP application and the requirements of this part for the duration of the original retention period;
(iv) Any unused AHP subsidy is returned to the Bank and made available for other AHP projects or households; and
(v) The amount of AHP subsidy used for the prepayment fee may not exceed the amount of the member's prepayment fee to the Bank;
(2)
(3)
(4)
(c)
(1)
(2)
(d)
(a)(1)
(2)
(ii)
(3)
(i) Fixed-point scoring criteria are those that cannot be satisfied in varying degrees and are either satisfied or not, with the total number of points allocated to the criterion awarded by the Bank to an application meeting the criterion; and
(ii) Variable-point criteria are those where there are varying degrees to which an application can satisfy the criteria, with the number of points that may be awarded to an application for meeting the criterion varying, depending on the extent to which the application satisfies the criterion, based on a fixed scale or on a scale relative to the other applications being scored. A Bank shall designate the targeting scoring criterion in § 1291.26(d) as a variable-point criterion.
(b)
(c)
(1) The Bank shall consult with its Advisory Council prior to adoption of its policy;
(2) The Bank shall adopt the policy in advance of an AHP funding round and include it in its AHP Implementation Plan;
(3) The policy shall include the methodology used to break a scoring tie, which may differ for each Fund, and which shall be drawn from the particular Fund's scoring criteria adopted in the Bank's AHP Implementation Plan;
(4) The scoring tie-breaker methodology shall be reasonable, transparent, verifiable, and impartial;
(5) The scoring tie-breaker methodology shall be used solely to break a scoring tie and may not affect the eligibility of the applications, including financial feasibility, or their scores and resultant rankings;
(6) The Bank shall approve a tied application as an alternate pursuant to § 1291.28(b) if the application does not prevail under the scoring tie-breaker methodology, or if the application is tied with another application but requested more subsidy than the amount of AHP funds that remain to be awarded, if the Bank has a written policy to approve alternates for funding under the applicable Fund; and
(7) The Bank shall document in writing its analysis and results for each use of the scoring tie-breaker methodology.
A Bank shall adopt in its scoring methodology for its General Fund all of the following categories of scoring criteria, including at least one housing need under each of paragraphs (e), (f), and (g) of this section, except that a Bank is not required to adopt the scoring criterion for homeownership by low- or moderate-income households in paragraph (c) of this section if the Bank allocates at least 10 percent of its required annual AHP contribution to any Homeownership Set-Aside Programs, and a Bank is not required to adopt the scoring criterion for Bank district priorities in paragraph (h) of this section:
(a)
(1) Land or units donated or conveyed by the federal government or any agency or instrumentality thereof; or
(2) Land or units donated or conveyed by any other party for an amount significantly below the fair market value of the property, as defined by the Bank in its AHP Implementation Plan.
(b)
(c)
(d)
(1)
(2)
(3)
(e)
(1)
(2)
(3)
(4)
(5)
(6)
(f)
(1)
(2)
(3)
(g)
(h)
A Bank shall adopt in its scoring methodology for each Targeted Fund established by the Bank at least three different scoring criteria, as determined by the Bank in its discretion, that allow the Bank to select applications that meet the specific affordable housing need or needs being addressed by the Targeted Fund.
(a)
(b)
(c)
(2) A tied application that does not prevail under the Bank's scoring tie-breaker methodology, or is tied with another application but requested more subsidy than the amount of AHP funds that remain to be awarded under the Fund, shall be approved as an alternate for funding if the Bank has a written policy to approve alternates for funding under the Fund.
(d)
(e)
(a)
(1) The Bank first requests that the project sponsor or owner make a reasonable effort to cure any noncompliance within a reasonable period of time, and the noncompliance could not be cured within a reasonable period of time;
(2) The project, incorporating any such changes, would meet the eligibility requirements of this part;
(3) The application, as reflective of such changes, continues to score high enough to have been approved in the AHP funding round in which the application was originally scored and approved by the Bank, which is as high as the lowest ranking alternate approved for funding by the Bank if the Bank has a written policy to approve alternates for funding; and
(4) There is good cause for the modification, which may not be solely remediation of noncompliance, and the analysis and justification for the modification, including why a cure of noncompliance was not successful or attempted, are documented by the Bank in writing.
(b)
(2)
(a)
(2) If an institution with an approved application for AHP subsidy loses its membership in a Bank, the Bank may disburse AHP subsidies to a member of such Bank to which the institution has transferred its obligations under the approved AHP application, or the Bank may disburse AHP subsidies through another Bank to a member of that Bank that has assumed the institution's obligations under the approved AHP application.
(b)
(c)
(d)
(e)
(f)
Pursuant to written policies established by a Bank's board of directors after consultation with its Advisory Council, a Bank, in its discretion, may provide AHP direct subsidy under its General Fund or any Targeted Funds for eligible projects and households involving both the lending of the subsidy and subsequent lending of subsidy principal and interest repayments by a revolving loan fund, provided the following requirements are met:
(a)
(2) The information in the application shall be sufficient for the Bank to:
(
(ii) Evaluate the criteria for the initial lending of the subsidy, and the specific proposed project if applicable, pursuant to the scoring methodology established by the Bank pursuant to §§ 1291.25, 1291.26, and 1291.27, as applicable.
(b)
(c)
(2) If an owner-occupied unit or project funded under this paragraph (c) is in noncompliance with the commitments in the approved AHP application, or is sold or refinanced prior to the end of the applicable AHP retention period, the required amount of AHP subsidy shall be repaid to the revolving loan fund in accordance with §§ 1291.15(a)(7), 1291.15(a)(8), and 1291.60, and the revolving loan fund shall re-lend such repaid subsidy, excluding the amounts of AHP subsidy principal already repaid to the revolving loan fund, to another owner-occupied unit or project meeting the initial lending requirements of this paragraph (c) for the remainder of the retention period.
(d)
(2) The revolving loan fund's subsequent lending of AHP subsidy principal and interest repayments shall be for the purchase, construction, or rehabilitation of owner-occupied projects for households with incomes at or below 80 percent of the median income for the area, or of rental projects where at least 20 percent of the units are occupied by and affordable for households with incomes at or below 50 percent of the median income for the area, and shall meet all other eligibility requirements of this paragraph (d).
(3) A Bank may, in its discretion, require the revolving loan fund's subsequent lending of subsidy principal and interest repayments to be subject to retention period, monitoring, and recapture requirements, as defined by the Bank in its AHP Implementation Plan.
(e)
Pursuant to written policies established by a Bank's board of directors after consultation with its Advisory Council, a Bank, in its discretion, may provide AHP subsidy under its General Fund or any Targeted Funds for the origination of first mortgage or rehabilitation loans with subsidized interest rates to AHP-eligible households through a purchase commitment by an entity that will purchase and pool the loans, provided the following requirements are met:
(a)
(b)
(2) As an alternative to using a forward commitment, the loan pool sponsor may purchase an initial round of loans that were not originated pursuant to an AHP-specific forward commitment, provided that the entities from which the loans were purchased are required to use the proceeds from the initial loan purchases within time limits on the use of the AHP subsidy as specified by the Bank in its AHP Implementation Plan and the Bank's agreement with the loan pool sponsor, which shall not exceed one year from the date of approval of the AHP application. The proceeds shall be used by such entities to assist households
(c) Each AHP-assisted owner-occupied unit and rental project receiving AHP direct subsidy or a subsidized advance shall be subject to the requirements of §§ 1291.15, 1291.50, and 1291.60, respectively.
(d) Where AHP direct subsidy is being used to buy down the interest rate of a loan or loans from a member or other party, the loan pool sponsor shall use the full amount of the AHP direct subsidy to buy down the interest rate on a permanent basis at the time of closing on such loan or loans.
A Bank may establish, in its discretion, one or more Homeownership Set-Aside Programs pursuant to the requirements of this part.
A Bank shall accept applications for AHP direct subsidy under its Homeownership Set-Aside Programs only from institutions that are members of the Bank at the time the application is submitted to the Bank.
A Bank's Homeownership Set-Aside Programs shall meet the eligibility requirements set forth in this section. A Bank may not adopt additional eligibility requirements for its Homeownership Set-Aside Programs except for eligible households pursuant to paragraph (b) of this section.
(a)
(b)
(1) Have incomes at or below 80 percent of the median income for the area at the time the household is accepted for enrollment by the member in the Bank's Homeownership Set-Aside Programs, with such time of enrollment by the member defined by the Bank in its AHP Implementation Plan;
(2) Complete a homebuyer or homeowner counseling program provided by, or based on one provided by, an organization experienced in homebuyer or homeowner counseling, in the case of households that are first-time homebuyers; and
(3) Are first-time homebuyers or households receiving AHP subsidy for owner-occupied rehabilitation, in the case of households receiving subsidy pursuant to the one-third set-aside funding allocation requirement in § 1291.12(b), and meet such other eligibility criteria that may be established by the Bank in its AHP Implementation Plan, such as a matching funds requirement, homebuyer or homeowner counseling requirement for households that are not first-time homebuyers, or criteria that give priority for the purchase or rehabilitation of housing in particular areas or as part of a disaster relief effort.
(c)
(d)
(e)
(f)
(g)
(h)
(1) Such costs are incurred in connection with counseling of homebuyers who actually purchase an AHP-assisted unit; and
(2) The cost of the counseling has not been covered by another funding source, including the member.
(i)
A Bank shall approve applications for AHP direct subsidy under its Homeownership Set-Aside Programs in accordance with the Bank's criteria governing the allocation of funds.
(a)
(2) If an institution with an approved application for AHP direct subsidy loses its membership in a Bank, the Bank may disburse AHP direct subsidies to a member of such Bank to which the institution has transferred its obligations under the approved AHP application, or the Bank may disburse AHP direct subsidies through another Bank to a member of that Bank that has assumed the institution's obligations under the approved AHP application.
(b)
(c)
(a)
(1)
(i) The project is making satisfactory progress towards completion, in compliance with the commitments made in the approved AHP application, Bank policies, and the requirements of this part; and
(ii) Following completion of the project, satisfactory progress is being made towards occupancy of the project by eligible households.
(2)
(
(ii) The household incomes and rents comply with the income targeting and rent commitments made in the approved AHP application;
(iii) The project's costs were reasonable in accordance with the Bank's project cost guidelines, and the AHP subsidies were necessary for the completion of the project as currently structured, as determined pursuant to § 1291.24(a)(4);
(iv) Each AHP-assisted unit of an owner-occupied project and rental project is subject to an AHP retention agreement that meets the requirements of § 1291.15(a)(7) and (8), respectively; and
(v) The services and activities committed in the approved AHP application have been provided.
(3)
(i) Bank review within a reasonable period of time after project completion of back-up project documentation regarding household incomes and rents (not including the rent roll) maintained by the project sponsor or owner, except for projects that received funds from other federal, state or local government entities whose programs meet the requirements in paragraphs (b)(1) and (2) of this section as specified in separate FHFA guidance, or projects that have also been allocated LIHTC; and
(ii) Maintenance and Bank review of other project documentation in the Bank's discretion.
(4)
(b)
(1) The compliance profiles regarding income targeting, rent, and retention period requirements of the AHP and the other programs are substantively equivalent;
(2) The entity has demonstrated and continues to demonstrate its ability to monitor the project;
(3) The entity agrees to provide reports to the Bank on the project's incomes and rents for the full 15-year AHP retention period; and
(4) The Bank reviews the reports from the monitoring entity to confirm that they comply with the Bank's monitoring policies.
(c)
(1)
(i) Bank review of annual certifications by project sponsors or owners to the Bank that household incomes and rents are in compliance with the commitments made in the approved AHP application during the AHP 15-year retention period, along with information on the ongoing financial viability of the project, including whether the project is current on its property taxes and loan payments, its vacancy rate, and whether it is in compliance with its commitments to other funding sources;
(ii) Bank review of back-up project documentation regarding household incomes and rents, including the rent rolls, maintained by the project sponsor or owner, except for projects that also received funds from other federal, state or local government entities whose programs meet the requirements in paragraphs (b)(1) and (2) of this section as specified in separate FHFA guidance, or projects that have been allocated LIHTC, provided that the Bank shall review any LIHTC noncompliance notices received from project owners pursuant to § 1291.15(a)(5)(ii) during the AHP 15-year retention period; and
(iii) Maintenance and Bank review of other project documentation in the Banks' discretion.
(2)
(ii)
(d)
(a)
(1) The AHP subsidy was provided to households meeting all applicable eligibility requirements in § 1291.42(b) and the Bank's Homeownership Set-Aside Program policies; and
(2) All other applicable eligibility requirements in § 1291.42 and the Bank's Homeownership Set-Aside Program policies are met, including that the AHP-assisted units are subject to retention agreements, as required under § 1291.15(a)(7), where the AHP subsidy was used for purchase of the unit, or for purchase of the unit in conjunction with rehabilitation.
(b)
(1) Bank review of certifications by members to the Bank, prior to disbursement of the AHP subsidy, that the subsidy will be provided in compliance with all applicable eligibility requirements in § 1291.42;
(2) Bank review of back-up documentation regarding household incomes maintained by the member; and
(3) Maintenance and Bank review of other documentation in the Bank's discretion.
(c)
(a)
(b)
(2)
(c)
(2)
(ii) The settlement with the project sponsor or owner must be supported by sufficient documentation showing that the sum agreed to be repaid under the settlement is reasonably justified, based on the facts and circumstances of the noncompliance, including any factors in paragraph (c)(2)(i) of this section that were considered in reaching the settlement.
A Bank shall recover from a member the amount of any AHP subsidy (plus interest, if appropriate) not used in compliance with the commitments in the member's AHP application or the requirements of this part as a result of the actions or omissions of the member.
(a)
(b)
(1) The Bank has failed to reimburse its AHP fund as required under paragraph (a) of this section; or
(2) The Bank has failed to recover the full amount of AHP subsidy due from a project sponsor, project owner, or member pursuant to the requirements of §§ 1291.60 and 1291.61, and has not shown that such failure is reasonably justified, considering factors such as those in § 1291.60(c)(2)(i).
(a)
(b)
(a)
(b)
(i) The member or the project sponsor originally provided the AHP direct subsidy as down payment, closing cost, rehabilitation, or interest rate buy down assistance to an eligible household for purchase, or for purchase in conjunction with rehabilitation, of an owner-occupied unit pursuant to an approved AHP application;
(ii) The AHP direct subsidy, including any interest, was repaid to the member or project sponsor as a result of a sale, transfer, or assignment of title or deed of the unit prior to the end of the retention period to a subsequent purchaser that is not a low- or moderate-income household; and
(iii) The repaid AHP direct subsidy is made available by the member or project sponsor, within the period of time specified by the Bank in its AHP Implementation Plan, to another AHP-eligible household for purchase, or for purchase in conjunction with rehabilitation, of an owner-occupied unit in the same project in accordance with the terms of the approved AHP application.
(2)
Without limitation on other remedies, FHFA, upon determining that a Bank has engaged in mismanagement of its Program, may designate another Bank to administer all or a portion of the first Bank's annual AHP contribution, for the benefit of the first Bank's members, under such terms and conditions as FHFA may prescribe.
(a)
(b)
(1) AHP application alternates in the Bank's final funding round of the year for its General Fund or any Targeted Funds, if the Bank has a policy to approve alternates for funding under such Funds;
(2) Pending applications for funds under the Bank's Homeownership Set-Aside Programs, if any; and
(3) Project modifications for AHP subsidy increases approved by the Bank pursuant to the requirements of this part.
(c)
Department of Veterans Affairs.
Final rule.
This rulemaking adopts as final, with changes, proposed amendments to VA's regulations governing payment of per diem to States for nursing home care, domiciliary care, and adult day health care for eligible veterans in State homes. This rulemaking reorganizes, updates, and clarifies State home regulations, authorizes greater flexibility in adult day health care programs, and establishes regulations regarding domiciliary care, with clarifications regarding the care that State homes must provide to veterans in domiciliaries.
This rule is effective on December 28, 2018.
Dr. George F. Fuller, Chief Consultant, Geriatrics and Extended Care Services (10NC4), Veterans Health Administration, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-6750. (This is not a toll-free number.)
On June 17, 2015, VA proposed changes to parts 17, 51, and 52 of title 38 Code of Federal Regulations. 80 FR 34794. VA published technical corrections to the proposed rulemaking on June 24, 2015, 80 FR 36305. This final rule amends part 17 by deleting provisions that applied to State home hospitals, because there no longer are any, and moving to part 51 the other provisions that apply to State homes, including State home domiciliary care programs. It revises part 51 subparts A, B, and C to eliminate redundancy in the regulations governing the payment of per diem to State home nursing home, domiciliary, and adult day health care programs by combining similar regulations from part 17 and part 52. It amends several sections of the nursing home regulations in part 51 subpart D, and adds subparts E and F on domiciliary care and adult day health care, respectively, to part 51. Because of that, this rule eliminates the State home regulations from part 17 and part 52, and combines in part 51 all the regulations for a State home to establish and maintain qualification for receipt of VA per diem payments.
We invited interested parties to submit written comments on the proposed rule on or before August 17, 2015, and we received 32 public comments. Several commenters commended and supported revisions that reorganize, update, and clarify the regulations, particularly those that increase the State homes' ability to emphasize the independence of adult day health care participants. VA thanks these commenters for their support of the rule. We have responded to the rest of the comments recommending changes to the proposed rule under the heading of the sections with which the commenters expressed concern.
The notice of proposed rulemaking proposed to amend 38 CFR part 51 under the part heading, “PART 51—PER DIEM FOR NURSING HOME, DOMICILIARY, OR ADULT DAY HEALTH CARE OF VETERANS IN STATE HOMES.” The correct heading of part 51 until this rulemaking becomes final is, “PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE HOMES.” The notice of proposed rulemaking neglected to include amendatory language proposing to change the heading of part 51. We are correcting this omission by adding that amendatory language and the revised heading of part 51 below as amendatory action 3. We have renumbered all subsequent amendatory instructions accordingly.
We have changed “rules” to “requirements” in the sentence of § 51.1 beginning, “Subpart C sets forth requirements governing . . . .” The term “rule” is commonly used as a synonym for “regulation” in federal rulemaking, as in the ACTION heading of this rulemaking. Avoiding its use in the text of a regulation eliminates a possible point of confusion. The term “requirements” better describes the function and scope of the regulations in subpart C of part 51.
VA received comments related to the definition of domiciliary care, and concerns that the proposed definition, in addition to the standards in subpart E of the proposed regulations imposing the entire nursing home program regulations on the domiciliary care program, would impose unnecessary and costly burdens on domiciliary programs that are inconsistent with their purpose and that would replicate nursing home care. Several commenters stated some States may have to close their domiciliary programs because of these costs. A commenter said that VA's proposed definition of “domiciliary care” needs to be clearer for the State homes to tell whether their programs fit the definition. Similarly, others said that States need a clearer definition of what domiciliary care is to know whether the per diem rate for that care will sustain their programs.
VA agrees that the application of whole regulations governing the nursing home care program to the domiciliary care program, as proposed §§ 51.300 and 51.350 would have done, would be excessively burdensome. We have revised those sections to eliminate the application of multiple nursing home provisions to the domiciliary care program. We discuss each change from the proposed rule in the discussion of §§ 51.300 and 51.350 below.
VA agrees that the definition of domiciliary care in proposed § 51.2 requires clarification. We have, therefore, added to it a description of what constitutes “necessary medical services” for purposes of State home domiciliary care, which are the services described in subpart E of this rulemaking. This updated definition, along with the revisions to the proposed domiciliary care requirements under subpart E of this rule, described in detail below, allows a user to tell whether a State home program fits the definition of domiciliary care.
A commenter said VA may need to clarify the definition of domiciliary care regarding whether domiciliary care is a temporary or permanent living arrangement so State homes could assess whether their programs meet the definition. The commenter said that State home domiciliaries offer different types of programs, including retirement, independent living, transitional care, or permanent care programs. VA received other comments raising similar concerns about State homes' abilities to provide transitional care in domiciliaries under the proposed rules.
VA declines to change the definition of domiciliary care to differentiate between temporary and permanent services. We believe the revised definition provides necessary guidance, and also provides flexibility so that State homes can operate many variations of domiciliary care within the definition, including transitional services, as long as the State home meets VA's standards for per diem payment while the resident resides in the home. The changes to the definition of domiciliary care in § 51.2 and to the domiciliary requirements in subpart E of this rulemaking should resolve the issues raised by this comment. We
Although not defined in this section, we noticed the terms “treatment plan,” “care plan,” and “plan of care” are used inconsistently throughout the proposed regulations to refer to the same thing: The regimen of care based on a comprehensive assessment that is offered in all State home programs of care. We changed all instances of these terms to “comprehensive care plan,” which is also consistent with the regulations in part 51 that are not changed by this final rule.
We are also removing “primary physician” from the definition proposed as “primary physician or primary care physician,” and changing all references to “primary physician” to “primary care physician” throughout part 51. Proposed part 51 had used each about the same number of times. Though they mean the same thing, we think this part would be clearer if the definition defines a single term and uses that term consistently.
In §§ 51.20 and 51.30 of the proposed rule, we used some terms that make sense applied to residential programs—nursing home and domiciliary—that do not make sense applied to adult day health care programs. For example, “beds” is a useful term when referring to the number of residents in a nursing home care program or a domiciliary care program, but not when referring to the number of participants in an adult day health care program, which has no overnight operations. We have, therefore revised §§ 51.20 and 51.30 to speak of “capacity” of a program or facility, rather than of “beds.”
We are changing proposed § 51.20(b) to explicitly include applicable requirements in subpart C in the list of requirements and standards that VA may evaluate in a survey of the State home. Subpart C contains requirements regarding eligibility, payment rates, and payment procedures that apply to State home programs of care. We do not consider this a substantive change, because State homes would clearly need to comply with subpart C under the proposed rule. This change makes § 51.20(b) complete regarding the scope of surveys.
We are clarifying proposed § 51.20(b)(3)(ii). As proposed, the paragraph provided for the State home to respond to a medical center director's recommendation to the Under Secretary for Health to not recognize a state home and to submit additional evidence with that response. The paragraph neglected to identify to whom the State home is to submit the response or additional evidence. We are adding language to the end of § 51.20(b)(3)(ii) providing that the State's submission of a response to a recommendation to not recognize a State home is to the Under Secretary for Health. This is consistent with current § 51.30(d), which provides for appeal from a recommendation against recognition, and inclusion of additional material with that appeal. This is not a change from the current regulation; it merely fills a gap in the proposed regulation.
We are further clarifying paragraph (b)(3)(ii) and multiple other proposed provisions of part 51 that measure time by qualifying the 30 days as “calendar” days. As proposed, part 51 inconsistently qualified the measure of time. We believe this inconsistency invites confusion. Qualifying time in calendar days generally provides certainty to the time allowed in provisions that prescribe deadlines. There are three exceptions in part 51 that measure time in “working” days. These codify long-standing practice with which VA and the State homes are accustomed. These are §§ 51.30(d)(1)(iii), time to provide a corrective action plan; 51.320(a)(4), time for a domiciliary care program to report a sentinel event; and 51.430(a)(3), time for an adult day health care program to report a sentinel event.
We are clarifying proposed § 51.20(c). As proposed, the paragraph provided, “After receipt of a recommendation from the Director, the Undersecretary for Health will award or deny recognition based on all available evidence.” Though it seems implicit, the proposed regulation does not explicitly say that “all available evidence” included any evidence the State home submits during the 30 calendar days the preceding paragraph allows for submission of a response or additional evidence. To make the regulation explicit, we are adding to paragraph (c), following “Director,” the following: “and allowing 30 calendar days for the state to respond to the recommendation and to submit evidence . . .” As revised, the sentence reads, “After receipt of a recommendation from the Director, and allowing 30 calendar days for the state to respond to the recommendation and to submit evidence, the Under Secretary for Health will award or deny recognition based on all available evidence.” We are also adding “in writing” at the end of the second sentence of paragraph (c) because the current regulation, § 51.30(e), requires the Under Secretary's decision to be written. We omitted this requirement from the proposed regulation.
We are removing the second sentence of proposed § 51.20(d)(2), which provided that changes in the use of particular beds between recognized programs of care and increases in capacity that are not the result of the expansion of the size of a home or relocation to a new facility will not require recognition. Those changes are the subject of § 51.30. We are adding “or capacity” following “size” in the remaining sentence of this paragraph to be clear that a recognized state home only needs a new recognition if there is an expansion in the physical size of the home, increased in the number of persons served, or relocation to a new facility. So, we do not need to explain in § 51.20 that the section on certification, § 51.30, addresses any changes that do not involve such an expansion or relocation. This is not a substantive change.
In § 51.30(a) and throughout part 51 wherever proposed, we are changing “within” as it pertains to numbers of days to “no later than.” We believe one can be unsure whether “within” includes or excludes the last day of the period. “No later than” more clearly includes the last day of the period. If the regulation provides, as in § 51.30(a) for example, that something be done no later than 450 days after an event one can be sure on day 451 the deadline has been missed.
VA is eliminating from proposed § 51.30(c) the provisions that would have allowed precertification when State homes switch capacity between programs of care or increase capacity in a program of care. On further consideration, we have determined that the regular surveys described in paragraph (b) of this section are frequent enough, and the provisional certification process holds the State homes accountable enough, that the precertification process adds complexity with little benefit. Deleting it eliminates an administrative burden on the State homes and on VA. We are, therefore, deleting the precertification provisions in proposed § 51.30(c)(1).
One commenter applauded proposed § 51.30(c)(2), which eliminated the requirement that VA perform a new survey of a program upon reduction of the capacity of that program. We have retained this provision, but have redesignated it as § 51.30(c). For administrative convenience, in this final rule we have changed the destination to
VA is clarifying the function and purpose of the provisional certification provisions of proposed paragraph (d)(1). The paragraph serves two purposes: (1) To allow the State home to receive per diem payments while correcting deficiencies a survey reveals, and (2) to ensure VA does not pay per diem if a survey reveals a deficiency that is an immediate hazard to health or safety so great, and the need to remediate so urgent, it is unreasonable to continue per diem payments during the time until the next survey.
Specifically, VA is amending proposed § 51.30(d)(1)(ii), which would not allow VA to grant a provisional certification if the State home is deficient in a standard that would jeopardize the health or safety of any resident or participant. Because almost all of the standards in these regulations are aimed at promoting the health and safety of State home residents and participants, the regulation as proposed would prevent VA from issuing most provisional certifications, frustrating the purpose of provisional certifications. Though some commenters favored imposing the strictest possible State home compliance with all regulations, VA believes a provisional certification scheme resulting in frequent denial of provisional certification is not in the best interest of State home residents. Consequently, we clarify that the deficiencies for which VA will grant provisional certification are only those that will not jeopardize the health and safety of Veterans before the State home can remedy them. We are, therefore, adding the word “immediately” so that this provision reads, “None of these deficiencies immediately jeopardize the health or safety of any resident or participant.”
VA is eliminating the provisions that were proposed as § 51.30(d)(3), which detailed how VA would issue additional provisional certifications to a State home that already received a provisional certification. VA has determined that the proposed procedure is inconsistent with VA's practices of working with State homes on corrective action plans to ensure the programs are brought into compliance with these regulations under one provisional certification. The provisional certification procedures in this final rule are complete without that proposed provision.
We have changed proposed § 51.31(b)(1). We proposed, as a requirement for VA to conduct a recognition survey, that a State home nursing home care program or domiciliary care program must have at least 21 residents or have a number of residents consisting of at least 50 percent of the resident capacity of the home. We have reduced the residency number requirement from 21 to 20, while keeping the 50 percent alternative. We are making this change to facilitate recognition of homes using the small house model which is based on facilities of 20 beds.
We have removed “the Assistant Deputy Under Secretary for Health (10N);” from the list in paragraph (c) of persons the director of the VA medical center of jurisdiction must notify upon finding an immediate threat to safety in a State home. Through reorganization, Veterans Health Administration no longer has an officer with exactly that title. The other listed VA offices are sufficient to accomplish the necessary oversight of State homes. Consequently, we remove the named VA officer without substitution of another.
We are revising the proposed heading of subpart C by inserting “Requirements Applicable to” before “Eligibility, Rates, and Payments”, to read, “Subpart C— Requirements Applicable to Eligibility, Rates, and Payments”. As revised, the heading describes the function and scope of subpart C better than the proposed heading.
In proposed subpart F, VA proposed changes to requirements for State home adult day health care to reduce the requirements for medical supervision in the programs. VA received comments that VA should establish a two-tier per diem payment system for adult day healthcare programs under § 51.40(a) because of the higher cost of providing medical supervision and the lower cost of programs that do not. The commenters said that failure to provide separate rates for programs that offer medical supervision and for those that do not will negatively affect State homes providing adult day health care services with medical supervision and the veterans these programs serve. They noted the current medical supervision style of programs has a significant track record of keeping veterans out of hospital emergency rooms and hospitalizations; they care for veterans who would otherwise be institutionalized in a nursing home.
We explained in the proposed rule that VA would not pay different rates of per diem to State home adult day health care programs that provide medical supervision than to those that do not. We proposed to expand the definition of adult day health care, which had previously allowed only for the medical model of care, to afford State homes the flexibility to offer a social model of care, and thereby expand availability of adult day health care to more Veterans throughout the country. Though a State home may still choose to provide medical supervision, and must meet the standards in § 51.445 if it does, the method for calculating per diem payments will remain the same regardless of the type of care provided. If the veteran needs more medical care than the adult day health care program can provide, the State home must transfer the veteran to another appropriate care program. Even if VA were to implement, under 38 U.S.C. 1741, different rates for adult day health care programs that provide the medical model of care, the payment would still be subject to the statutory limit of no more than one half of the cost of the veteran's care. 38 U.S.C. 1741(b). We point this out on the assumption that the commenter is seeking a payment tier that provides higher payments for medical model participants than the current per diem payment, and not a lower payment tier for social model adult day health care participants. Because the statute describes the maximum basic per diem payment as a percentage of the cost of care, and because we see no value in tiered payments merely for the sake of tiering, we make no change based on this comment.
We note that since the publication of VA's proposed rule in June 2015, the President signed into law the State Veterans Home Adult Day Health Care Improvement Act of 2017. VA is working to implement this new authority; if any further revisions in these regulations are needed because of this recently enacted legislation, VA will make them through subsequent rulemaking.
Another commenter addressed the cost of providing “primary care, medical services, and preventative care to domiciliary residents while restricting the payments to `less than one half of the cost of care' ” as inequitable and unrealistic. The commenter asserted the current reimbursement structure does
By law, the basic per diem rate cannot exceed one-half the cost of the veteran's care in the State home. As such, per diem payments are not intended to serve as a reimbursement for all the costs of the care provided to veterans. We make no change based on this comment.
The per diem program does not shift costs of care or the responsibility for providing health care from VA to the State homes. Domiciliary care has long included all “necessary medical services” which essentially includes all outpatient care. See § 17.30(b). So, by limiting the care that State home domiciliaries are required to provide, this rule could be seen as shifting the cost and responsibility for most medical services to VA. Regarding additional bureaucratic paper-work costs due to this rulemaking, the commenter did not identify any specific provisions that would have that effect. We refer the commenter to the discussions throughout this supplementary information describing multiple changes from the proposed rules this final rule makes to reduce administrative and other costs. For example, see the discussion of changes from proposed § 51.300. We make no change based on this comment.
The same commenter expressed difficulty keeping track of the services covered by the different per diem payments. The commenter expressed the desire that VA publish a comprehensive list of services covered by the nursing home, domiciliary, and adult day care per diem payments for veterans with service-connected disabilities rated 70 percent or 100 percent disabling.
Per diem under 38 U.S.C. 1741 is paid under a VA grant program. VA makes the payments to the States to support the care of veterans in State homes; it is not “coverage” for specific services, like insurance. The States must meet certain standards as a condition of receiving VA per diem to ensure the State home provides for the health, safety, and well-being of veterans in its care. The rate of per diem paid for the nursing home care of veterans with service-connected disabilities rated 70 percent or more is the subject of § 51.41, Contracts and provider agreements for certain veterans with service-connected disabilities. VA published a notice of proposed rule; correction and clarification, 80 FR 36305 (June 24, 2015), acknowledging that VA omitted § 51.41 from the initial notice of proposed rulemaking proposing the rules this rulemaking finalizes. The notice of correction stated VA is not amending § 51.41 in this rulemaking, consequently comments based on it are beyond the scope of this rulemaking. We make no changes based on this comment.
Commenters objected that VA proposed to apply the same rule to payment of per diem for veterans absent from State home domiciliaries as it applies to payment of per diem for veterans absent from State home nursing homes. As proposed, § 51.40(c) would allow VA to pay per diem for a day without an overnight stay if the State home domiciliary had an occupancy of rate of 90 percent or greater on that day. The per diem payments would be limited to the first 10 consecutive days the veteran was admitted to any hospital and the first 12 days in a calendar year for absences other than for the purpose of receiving hospital care. Specifically, the commenters objected to the requirement that the State home domiciliary care program be filled to 90 percent of capacity before VA will pay per diem for a veteran's absence. One comment said the requirement would have a major financial impact on State home domiciliaries, and that the limit for payments of 12 days in a calendar year for absences other than for hospital care would adversely affect the residents' quality of life. One commenter requested VA allow 24 days of leave other than for hospital care, arguing this would be good for the resident and consistent with the capacity for independence of domiciliary residents. Another asserted the regulation was vague as proposed and needed clarification. The commenter noted the proposed regulation omitted the “original” requirement that a resident not be absent from a State Home for more than 96 consecutive hours for the Home to receive per diem for that veteran, but the proposed section now states that per diem will be paid only for a veteran who has an overnight stay, or if the State Home has an occupancy rate of 90 percent or greater on that day. This commenter pointed out that domiciliary residents are independent and may choose to spend time away from the State home, which needs to guarantee their accommodations will be available when they return and should be reimbursed for that. These commenters said VA should continue the “96-hour” rule for payment of per diem during absences from the domiciliary for reasons other than hospitalization.
VA agrees that domiciliary residents require a different level of care and have more independence than nursing home residents, and imposing the same requirements for absences would impose an unfair burden on domiciliaries. State home domiciliary care programs are typically below 90 percent of capacity, but VA nonetheless believes that it is important to pay per diem during short absences to ensure that veterans who choose to take brief absences do not lose their spaces in State home domiciliaries. We agree that the 12-day cumulative absence rule is impracticable and overly burdensome for domiciliary care programs for the same reasons. In fact, even a 24-day rule, as one commenter requested, would allow less time away per year than the 96-hour rule some commenters recommended. Consequently, we are removing both the 90 percent and the 12-day requirements from the final rule. We are instead codifying the 96-hour rule for absences from domiciliaries in § 51.40(c), as it is currently in VHA Directive 1601SH.01. Under this rule, VA will pay per diem for any absence from the domiciliary of 96 or fewer consecutive hours, unless the absence is for hospital care at VA expense. VA will not pay per diem for any absence that lasts longer than 96 hours.
To effect these changes, we are revising the paragraph into two paragraphs: (c)(1), “Nursing homes” and (c)(2), “Domiciliaries.”
As published in a notice of correction and clarification, 80 CFR 36305 (June 24, 2015), this rulemaking as proposed inadvertently omitted instructions for § 51.41. VA did not intend to propose any changes to that section, and we make none in this rulemaking. We have provided amendatory language for subpart C to ensure inclusion of § 51.41 in 38 CFR part 51, and have added § 51.41 to the table of contents.
As proposed, § 51.42(a) read as a 147-word sentence. We have revised it to read as three sentences for clarity. We have also revised the proposed note to paragraph (a)(1)(i), redesignated “Note 1,” to clarify who must complete the financial disclosure and that adult day health care participants are not to complete the financial disclosure, but they must sign the form to acknowledge financial responsibility. As revised, the note also makes clear that VA will reject
VA had proposed expanding the deadline for VA to receive the forms from the State home identified in this section from 10 days to 12 days. The statute only allows 10 days, and we have no authority to allow a longer time. 38 U.S.C. 1743. VA will therefore maintain the 10-day deadline in this final rule by changing 12 to 10 in paragraph (b)(3) of this section. As discussed above, we are qualifying the time as 10 “calendar” days and defining the time limit as “no later than,” rather than “within” as proposed, and adding “after care began”, consistent with the statute. We have also made minor technical edits to this section. We have changed the heading of paragraph (b)(2) of this section by deleting “or precertified,” because, as described above, § 51.30(c) will not establish a precertification procedure. We have deleted the first sentence of paragraph (b)(2) of this section for the same reason.
One commenter said that proposed § 51.51(b)(7) is ambiguous in requiring that a veteran must be able to “[s]hare in some measure, however slight, in the maintenance and operation of the State home” to be eligible for VA per diem payments, and this provision could violate the protection from involuntary servitude of the thirteenth amendment of the U.S. Constitution.
We disagree with the assertion that paragraph (b)(7) compels involuntary servitude. Residency in the State home domiciliary care program is itself voluntary. Any resident may leave. Paragraph (b)(7) describes an ability that, with the other eligibility criteria, ensures the enrollees on whose behalf VA pays per diem are appropriately in a domiciliary care program, and that VA pays the State home domiciliary care per diem only for such residents. Moreover, under revised § 51.310(c), the veteran is consulted and must agree to the work arrangement described in his or her comprehensive care plan, and § 51.300(b) requires that the resident be paid for work that the State home would need to pay others to perform. Together these provisions protect residents from involuntary servitude and from a State home otherwise taking unfair advantage of the resident through its work program.
Based on this comment, however, we are revising paragraph (b)(7) to read, “Participate in some measure, however slight, in work assignments that support the maintenance and operation of the State home.” This makes clear the eligibility criteria include the ability to personally participate in the maintenance and operation of the State home. The addition also harmonizes this eligibility criterion with the role of resident work in the domiciliary care program as prescribed in §§ 51.300 and 51.310. The specific work the resident chooses will be by agreement with the interdisciplinary team that develops the resident's comprehensive care plan, and the resident will be paid a competitive wage if the facility would otherwise pay a non-resident for such work. There is flexibility in how this may be implemented, as reflected in §§ 51.300(b) on residents' rights and behavior and 51.310(c) on comprehensive care plans, respectively.
Multiple commenters commented the State home should pay residents for work. Another objected to application through proposed § 51.300 of the nursing home regulation, § 51.70(h)(1), permitting a resident to refuse to work. This commenter asserted the State home should require each resident to work. In consideration of these comments we are revising proposed § 51.300 to require each resident's comprehensive care plan to specify whether a resident's work for the domiciliary is paid or unpaid.
We have made non-substantive technical revisions to paragraph § 51.52(d)(3)(ii). As proposed, this provision may have been interpreted as requiring a minimum of 24 visits, 12 outpatient and 12 emergency, to be considered as a high user of medical services and thereby establish eligibility for adult day health care per diem payments. We intended 12 visits total, whether outpatient, emergency, or some combination, and have changed the provision in this final rulemaking to clarify that.
We are changing the heading of § 51.58, as shown, consistent with the changed heading of subpart C, discussed above, and other references to subpart C in this part. Similar to the change described above in § 51.20(b), we are changing proposed § 51.58 to make explicit in the introduction that State homes must meet the requirements of subpart C to receive per diem payments. Subpart C contains the eligibility requirements, payment rates, and payment procedures that apply to all State home programs of care. Although we do not consider this a substantive change, because the provisions of subpart C clearly apply to State homes receiving per diem, § 51.58 would be incomplete without it.
This rulemaking makes a technical amendment to § 51.140(a)(2) that was not in the proposed rule. The paragraph refers to the “American Dietetic Association,” which changed its name to the “Academy of Nutrition and Dietetics.” This rulemaking updates that name.
VA received comments asking VA to collaborate with national associations representing State homes to revise the proposed regulations regarding domiciliary care and to retain the prior domiciliary rules in the interim, rather than implement the proposed rules.
VA is grateful to the State homes, and to all parties who submitted comments on this rulemaking. The rulemaking process we have followed allows all members of the public to have a fair opportunity to participate in the rulemaking process, as the Administrative Procedure Act requires. 5 U.S.C. 553. VA has considered all comments it received, including the comments about the effects of the proposed domiciliary regulations submitted by national associations and individual State homes, and is making substantial changes to the domiciliary regulations in this final rulemaking. We therefore decline to retain the prior rules on per diem payments to domiciliaries while developing new regulations, but we welcome continuing feedback and opportunities to work with the State homes to improve services to veterans.
VA received a number of comments about § 51.300, which, as proposed, would have applied to State home domiciliaries the requirements of §§ 51.70, 51.80, 51.90, and 51.100. These regulations provide standards that apply to State home nursing home resident rights; admission, transfer and discharge rights; resident behavior and facility practices; and quality of life. In response to these comments and for other reasons, we have revised proposed 51.300 so it does not apply to the domiciliary care program all of the nursing home regulations we proposed to apply. We have changed the introduction to § 51.300 to specify which provisions of the nursing home sections will not apply to the
Five commenters opined that compliance with §§ 51.70, 51.80, 51.90, and 51.100 may seem reasonable as they pertain to veterans' treatment and rights. They asserted, however, that compliance with these sections also imposes additional, extensive “nursing home” standards on the domiciliary programs, creating new requirements that are not feasible under current operation and staffing models. The commenters noted, for example, that § 51.70 contains 14 major sections and multiple subsections of requirements, whereas the existing domiciliary care program regulations have only one standard “(13 Quality of Life).” The commenters asserted the other sections to which § 51.300 refers are similarly burdensome, citing as another example the § 51.100 requirement that social workers meet specific qualifications and that the domiciliary meet specific staffing requirements.
We deduce that the commenters' citations of various “existing regulations,”
The commenters also expressed particular concern about the cost of applying these sections to domiciliary care programs that offer primarily transition services. Commenters said the proposed rules would have an adverse financial effect on the domiciliary programs, including potential closures, which would have an especially negative effect on the homeless population that some domiciliary care programs widely serve. Commenters said the proposed rules would treat otherwise homeless residents as patients and would medically institutionalize them, whereas the traditional domiciliary model encourages self-reliance. Some commented that nursing home standards would increase the nursing requirements for assisted-living domiciliaries. Some said that these requirements amounted to an unfunded mandate. Some said VA should either increase the per diem payment for domiciliary care, or eliminate or reduce the requirements.
We disagree that any requirement in this rulemaking is an unfunded mandate, even if compliance with some provisions increases a State's costs to run its program. An unfunded mandate, or a “Federal intergovernmental mandate” as defined in the Unfunded Mandates Reform Act of 1995, is, in pertinent part, “any provision in legislation, statute, or regulation that (i) would impose an enforceable duty upon State, local, or tribal governments—except (I) a condition of Federal assistance; or (II) a duty arising from participation in a voluntary Federal program.” 2 U.S.C. 658(5). No Federal law imposes an enforceable duty on any the States to have a State home. VA's per diem program is a benefit the United States affords veterans through the States. This rulemaking provides conditions of this VA assistance. Each State participates voluntarily. The cost of qualifying for VA per diem payments to State homes is not an unfunded mandate; it is simply a condition of Federal assistance or a duty arising from participation in a voluntary Federal program. We make no change based on this comment.
VA agrees that certain of the requirements we proposed in § 51.300 should not be applied to State home domiciliaries, and we have made a number of changes to that section in response to the commenters' recommendations. The standards VA will require State home domiciliary care programs to meet under this final rule are those we have determined are essential to the health, safety, and well-being of the residents and that will enable the State homes to continue providing services that foster veterans' independence. To that end, VA will apply some provisions of §§ 51.70, 51.80, 51.90, and 51.100 to domiciliaries, but we are excluding some and establishing more suitable standards in the place of certain paragraphs of each. From § 51.70, we are excluding § 51.70(b)(9), (h)(1), and (m); from § 51.80 we are excluding § 51.80(a)(2), (a)(4), and (b); and from § 51.100 we are excluding § 51.100(g)(2), (h), and (i)(5)-(i)(7). We have added provisions using the same or substantially similar headings as the excluded paragraphs and added provisions in language similar to the excluded provision, adapted and tailored to the needs of the domiciliary care program. For the most part, these changes implement changes commenters recommended or eliminate burdens commenters identified.
Some commenters approved of the proposed application of nursing home regulations to domiciliary care programs. They urged VA to apply all nursing home regulations to domiciliary care programs. Some suggested specific changes to various provisions of §§ 51.70 and 51.100 as we proposed to apply them to domiciliary care programs. The suggested amendments are addressed under the headings for those provisions. One suggested a substantial rewrite of §§ 51.70 and 51.100, which we discuss under the Other Issues heading below.
A description of changes from the proposed regulations follows.
VA received comments that § 51.70(b)(9), Notification of changes, should not apply to domiciliary care program residents. The comments said that State homes do not currently notify families or legal representatives of changes to the domiciliary residents' medical status or room assignments. They noted that the State home often asks the residents to move from rooms with multiple residents to single rooms based on availability and seniority, and there is no need to inform family members in writing of such a change. One commenter further noted, “[T]here is no need to notify family members of changes in their medical conditions against their will in violation of their Health Insurance Portability and Accountability Act rights,” and domiciliary residents are independent enough to oversee their own affairs. We interpret the comment referencing HIPAA to mean, if a State home were to notify family members of changes in the resident's medical condition over the resident's objection, that notice would violate the resident's rights under HIPAA, and therefore the proposed notice requirement violates HIPPA.
We agree that the requirement to notify a resident's legal representative or interested family member of changes to
VA received comments objecting to applying to domiciliaries via proposed § 51.300 the nursing home rule that allows residents to refuse to work in § 51.70(h)(1). A commenter said that work programs allow residents to participate in their independent living communities and provide valuable therapy and skills for residents who will leave the facility. In contrast, VA also received comments that supported the proposed right to refuse to work for domiciliary residents.
We agree that sharing in some portion of the work to maintain the domiciliary is an essential part of domiciliary care programs. By longstanding practice, in the absence of comprehensive State home domiciliary regulations, State home domiciliary care programs have followed the same work requirement that applies to eligibility for VA's domiciliary care program in § 17.46(b). As described above, VA has adopted a requirement in § 51.51(b)(7) that to be eligible for per diem payments for State home domiciliary care the veteran must be able to participate in some measure, however slight, in work assignments that support the maintenance and operation of the State home. We have, therefore, also changed § 51.300 to eliminate the nursing home rule regarding the right to refuse work that VA had proposed to apply to State home domiciliary residents. As revised, § 51.300(b) now states explicitly, in part, “The resident must participate, based on his or her ability, in some measure, however slight, in work assignments that support the maintenance and operation of the State home.” To ensure that the work has therapeutic value, § 51.300(b) also requires that the State home have a written policy to implement the work requirement, that each resident's comprehensive care plan describe the work the resident will perform, that the facility consulted with and the resident agrees to the work arrangement described in the comprehensive care plan, and that, if the resident is paid for the work he or she performs, payment will be at wages that meet or exceed the prevailing wages for similar work in the area. We have also included a provision to encourage the resident's participation in vocational and employment services, in addition to performing work.
VA received a comment saying that prevailing wages are not currently paid for participation in work therapy or volunteer programs. It's unclear whether the commenter means that State home domiciliaries should have authority to pay residents some other wage, or whether they should have authority to not pay residents for their work. VA believes a resident may perform volunteer work designed for its therapeutic value, even if the nature of the work is not one that an outside worker would typically be contracted to perform. VA also believes, however, that domiciliary residents are entitled to fair payment for the work they perform for the maintenance and operation of the State home if the home would otherwise hire non-residents to do the work. This distinction protects the residents from being used under the guise of therapy to reduce the State homes' operating costs by substituting residents' labor for labor it would ordinarily hire at the prevailing wage in the local labor market. VA applies similar rules regarding work therapy to its own domiciliary and nursing home residents, and we see no difference between VA and State home programs to suggest residents should be paid different wages when doing work for which the State homes must pay. To make clear that State homes must pay residents the prevailing wage to perform work the State home would have otherwise hired non-residents to perform, we revised paragraph (b)(3) to read as follows: “Compensation for work for which the facility would pay a prevailing wage if done by non-residents is paid at or above prevailing wages for similar work in the area where the facility is located”.
VA received comments saying the domiciliary residents should be compensated for all work they perform. VA disagrees; the work requirement does not preclude unpaid volunteer work, such as keeping one's room orderly or other housekeeping chores ordinarily to be expected of persons sharing a residence.
One commenter asserted VA's State home per diem regulations amount to a contract between State homes and VA requiring that State homes pay veterans Federal contract wages. The commenter cites an invalid World Wide Web address,
We received comments objecting to the proposed application to the domiciliaries of the nursing home requirement from § 51.70(m), which provides married couples have the right to share a room if they live in the same facility and both agree. One commenter noted that it operates one of the oldest State homes in the country and lacks the space or proper facilities to provide married living quarters in the domiciliary, and to do so would need renovations and the possible displacement of some unmarried residents. In contrast, one commenter supported the requirement that State home domiciliary care programs receiving VA per diem payments must provide shared living quarters for married veteran residents who wish them and who each meet the eligibility criteria for the program.
We agree that buildings might not always be able to accommodate married living quarters; however, there are ways that the State Home can make accommodations for married couples to have private space, even if temporarily. To accommodate the physical space limitations of certain State homes, but establish responsibility for programs to honor such requests to the extent possible, we have added § 51.300(c). This paragraph restates § 51.70(m), inserting “if space is available within the existing facility” after “has the right” and adding the following sentence: “If the State home determines existing space is not available to allow married residents to share rooms, the State home will make accommodations for the privacy of married residents.”
We received comments that State homes should have a concise procedure for discharge of residents to prevent
We agree that State home domiciliaries must have a clearly identified process for admissions, transfers, and discharges, and we have amended the introductory paragraph of § 51.300 to require the State home domiciliary have a written policy on the topic. Additionally, we have created § 51.300(a) to require the facility management to immediately inform the resident when there is a decision to transfer or discharge the resident, and a new paragraph (d)(6) to require the notice to include the resident's right to appeal and the contact information for the State long-term care ombudsman. These changes to the final rule give the residents a more defined process for discharge. We understand the commenter's reference to a VA representative to mean a VA employee. Involving a VA employee in this process would impose an unnecessary burden on State homes. We therefore make only the changes described based on that comment.
We received a comment objecting to the application to domiciliary care programs of the transfer and discharge requirements from § 51.80(a)(2)(ii). Section 51.80(a)(2) requires the facility management to permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless [circumstances meet one or more of a list of conditions]. Among the circumstances permitting transfer or discharge, § 51.80(a)(2)(ii) provides, “The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the nursing home.”. The commenter distinguished domiciliary residents from nursing home patients, in that it is clear when nursing home patients no longer need nursing home services, but not clear when domiciliary residents no longer need domiciliary care, and domiciliary residents are not discharged just because of improved health. For that reason, it would be inappropriate to apply the nursing home requirements for discharge or transfer of a resident to the circumstances of most domiciliary residents.
We disagree with part of this comment. The structured, residential environment of domiciliary programs can foster personal and financial growth and accountability that allows residents to leave domiciliary care programs because of their improved circumstances. We believe therefore that it is appropriate to retain this provision with respect to discharges due to improved circumstances. The comment revealed a gap in the proposed rule, however. Focusing on transfer or discharge because of improvement revealed the possibility transfer or discharge could be appropriate because the residents may have ceased to meet one or more of the eligibility criteria of § 51.51. For example, the veteran's annual income may have exceeded the maximum annual rate of pension. To fill this gap, we have added paragraph (d)(2)(vii) to the criteria for transfer or discharge in § 51.300 to read, “The resident ceases to meet any of the eligibility criteria of § 51.51.” Section 51.51 provides eligibility criteria, but it does not address whether those criteria apply only to the applicant, or also to the resident. It is inconsistent with the function of the eligibility requirements, to ascertain whether someone is suitable for the domiciliary care program, to apply them at entrance and not during residency. A resident who ceases to meet an eligibility criterion would certainly meet a criterion for transfer or discharge.
We agree with the commenter that it is also important to include a requirement for when a resident needs to be moved to a higher level of care. We have, therefore, excluded domiciliaries from complying with § 51.80(a)(2), and instead establish domiciliary transfer and discharge requirements in § 51.300(d)(2), including the requirement in § 51.300(d)(2)(ii) that residents be discharged if they need a higher level of long term or acute care.
VA received comments objecting to the application in proposed § 51.300 of the requirement of § 51.80(a)(4) to notify a legal representative or family member of a transfer or discharge, and of the requirement of § 51.80(a)(5) to provide that notice 30 days in advance of the transfer or discharge. The commenters said these provisions eliminate flexibility necessary for managing an independent living environment and are inconsistent with the independence of the residents.
We have added § 51.300(d) in response to these comments. Regarding the requirement to notify a legal representative or family member, in § 51.300(d)(4) we have changed the regulation by eliminating the State home's requirement to notify and giving the resident the right to decide whether the state home notifies a legal representative or family member. This is similar to the changes we made in § 51.300(a) regarding notifications about medical status and room assignment changes. Regarding the 30-day advance notice of transfer or discharge, we disagree that the requirement is overly burdensome. New paragraph § 51.300(d)(5)(i) provides ample exceptions to the 30-day requirement to afford reasonable flexibility. The 30-day notice requirement, with the exceptions to make it practicable, affords the residents a reasonable safeguard against transfer or discharge without warning.
As proposed, § 51.300 would have applied the nursing home regulation on notice of bed-hold policy and readmission, § 51.80(b), to domiciliary care programs. Based on comments asserting this to be overly burdensome in the domiciliary care context, we have determined there is no need to apply the detailed notice of policy requirements to domiciliary care programs that § 51.80(b) applies to nursing home care programs. Domiciliary residents still need information about the availability of a bed if they return to the home from a period of hospital care. To achieve this, we have added paragraph (e) to proposed § 51.300, which provides, “The facility management must provide written information to the resident about the State home bed-hold policy upon enrollment, annually thereafter, and before a State home transfers a resident to a hospital.” Additionally, we have added as the first sentence of the paragraph, “The State home must have a written bed-hold policy, including criteria for return to the facility.” While we agree with the commenters that the domiciliary care program bed-hold policy does not need the degree of detail § 51.80(b) applies to the nursing home care program, we believe there must be a policy. This is a logical corollary to the requirement to provide a resident the bed-hold policy. While it may seem obvious that the State home must have a bed-hold policy to notify a resident of it, we believe the paragraph is clearer to explicitly require the State home to have a bed-hold policy. We also added a provision regarding a resident's right to
Several commenters addressed social worker credentialing for domiciliary care programs, which we discuss below. In reviewing those comments, we concluded the commenters' reasoning about social workers' credentials applies as well to credentialing of therapeutic recreation specialists in domiciliary care programs. Unlike the nursing homes, the domiciliaries do not require a credentialed or licensed professional to oversee the residents' activities. We will not apply the credentials provisions of § 51.100(g) to the domiciliary care program as proposed. To effect that change, we have amended the introductory paragraph of § 51.300 to exclude § 51.100(g) and have added § 51.300(f), Resident activities, to adapt § 51.100(g) to the domiciliary care program. As adapted, § 51.300(f)(1) restates § 51.100(g)(1), and § 51.300(f)(2) provides, “The activities must be directed by a qualified coordinator.” Section 51.300 applies no other provisions of § 51.100(g) to the domiciliary care programs.
VA received comments objecting to the proposed application of nursing home standards for social services from § 51.100(h), Social services, to domiciliary care programs under proposed § 51.300. One commenter objected only to the requirement of licensed social workers, another objected on the grounds that the proposed regulations mandate specific qualifications and staffing requirements that are not imposed upon domiciliary programs currently. Another noted that the State homes employ licensed and unlicensed social workers, with the latter providing only case management for domiciliary residents that do not require in-depth treatment, in keeping with a transitional model where the social worker's job is to assist the resident with transitioning out of the domiciliary.
We agree the specific credential requirements of § 51.100(h) are not necessary for State home domiciliary care programs. We have added § 51.300(g) to provide more flexibility in social worker staffing for domiciliaries. Paragraph (g) provides that “[t]he State home must provide social work services to meet the social and emotional needs of residents to attain or maintain the highest practicable mental and psychosocial well-being of each resident;” that “[t]he State home must have a sufficient number of social workers to meet the residents' needs”; and that “[t]he State home must have a written policy on how it determines qualifications of social workers.” Paragraph (g)(3) provides that “[i]t is highly recommended, but not required, that a qualified social worker is an individual with” the same qualifications as those required for nursing home social services providers.
One commenter noted the proposed regulation applying 51.100 to domiciliary care programs “references the number of required licensed social workers for the state veterans' home,” and that “clarity needs to be given as it relates to requirements for Social Workers assigned to the State Home Domiciliary.”
The regulation on the number of social workers, § 51.300(g)(2), provides, “The State home must have a sufficient number of social workers to meet residents' needs.” We interpret the comment to be asking how the required number of social workers specified for nursing homes in § 51.100(h), Social services, applies to the domiciliary care program. As the introduction to final § 51.300 states, 51.100(h) is among the nursing home provisions this final rule does not apply to domiciliary care programs. Rather, § 51.300(g)(2) affords State homes flexibility in determining the number of social workers “sufficient” to meet the object of paragraph (g)(1). Additionally, though § 51.300(g)(3) strongly suggests the State home use licensed social workers, licensure is not required.
VA received comments objecting to the application of § 51.100(i), Environment, to the domiciliary care program. These objected to the proposed closet space requirement and to maintaining temperatures at 71-81 degrees Fahrenheit. They commented that environmental requirements of § 51.100(i) that have not previously applied to domiciliary care facilities would pose extraordinary challenges to States operating older facilities that were not designed to meet these requirements. One commenter reported it would face significant and costly upgrades, especially to a 130 year old facility, if VA finalizes the proposed rule. The commenter requested VA “grandfather in” older facilities, permitting them not to make upgrades to meet the § 51.300 environment requirements. Another objected it could not provide private closet space without “massive renovations.”
We agree that the temperature, sound, and lighting requirements VA proposed are unnecessary for the health and well-being of domiciliary residents, and we have eliminated them. We will not, however, remove the closet space requirement, or waive it for older facilities. VA has demonstrated its view of the importance of this requirement by including it among the requirements of its construction grant regulations. 38 CFR 59.140, 59.150. A State may seek a part 59 grant to assist it to bring older facilities into compliance with these essential standards, or to replace facilities that cannot come into compliance, but VA will not “grandfather in,”
VA received comments saying we should not apply State home nursing home requirements to State home domiciliaries that would require the domiciliary care programs to provide services they do not now provide. The commenters specifically mentioned access to an ombudsman. The commenters distinguished between the needs of nursing home residents, whom they described as an elder, very vulnerable population, and the domiciliary residents, who do not have the same vulnerabilities. They said the domiciliary care program residents are able to tend to their own affairs, and an ombudsman is therefore not necessary.
VA also received comments asking VA to retain the proposed requirement that State home domiciliary residents have access to an ombudsman. The commenters asked VA to appoint or require the State to appoint an ombudsman or patient advocate. One commenter said that decisions would be less ad hoc, more thoughtful, and more considerate of residents' welfare if an ombudsman were available.
We agree with the commenters who asked VA to require domiciliary care program residents to have access to an ombudsman. We disagree with the commenters who argue the relative soundness of the domiciliary residents compared to nursing home residents means the domiciliary residents do not need an ombudsman. VA makes no change to the proposed application of the ombudsman requirement of § 51.70(j) to domiciliary programs. As some commenters pointed out, and VA believes, domiciliary residents face vulnerabilities and are entitled to have an advocate outside the facility who is able to advocate on their behalf or mediate situations between State home
One commenter requested that out of sensitivity to the unique needs of veterans, VA add to the quality of life regulations under 51.300 a requirement that State homes recruit and hire veterans for all positions in the State homes, and where veterans are unavailable, require special training of non-veterans in “veteranology” [sic], “or the study of veterans.”
We decline to add the suggested requirement to the quality of life provisions of part 51. Though the commenter's ideas about the value of veteran employees or of special education for non-veteran employees at State homes have merit, the requirement sought would impose a substantial new personnel burden on the state homes, which may conflict with employment laws of these States. Rather than impose this requirement on the States, we would prefer to give the States discretion to hire the best employees for their Veterans. Further, the commenter's suggestion is beyond the scope of this final rulemaking. Consequently, we make no change based on this comment. Nevertheless, we call upon the States to consider the ideas of the commenter.
The same commenter urged VA to require the States, as a condition of receipt of VA per diem payments, to permit residents for whom VA pays per diem to apply for career professional employment at State homes as a “civil right.” The commenter requested regulations providing specific employment practices. The commenter further requested VA to establish by regulation “a rating and employment system whereby residents of US VA Per Diemed [sic] State Veterans Home Domiciliary Programs [sic] who are working professionals living in an SVH Domiciliary Program while seeking employment are registered as members of a new Federally protected class of veteran—`the SVH Domiciliary Veteran-Resident Career Professional.' ”
The employment regulation the commenter seeks would conflict with 38 U.S.C. 1742(b), which prohibits VA from having any authority over the management or control of any State home. While a resident is free to apply to any job, it is beyond the scope of this rulemaking to create “a new Federally protected class of veteran[s].” Further, as noted above, we would prefer to give the States discretion to hire whom they consider the best qualified employees for their Veterans.
Regarding creation of protected classes under Federal civil rights law, VA lacks authority to create protected classes of citizens under Federal civil rights laws. Creation of the protected class the commenter advocates would require legislation. Current statute prohibits VA authority over “the management or control of any State home,” 38 U.S.C. 1742(b), and the establishment of a “rating and employment system,” as the commenter described it, seems very likely to amount to management contrary to that statute. Even if VA had the authority to regulate as the commenter seeks, the commenter's suggestions are beyond the scope of this final rulemaking. We make no changes based on this comment.
One commenter noted a State home provides transitional domiciliary care to Veterans who are medically able to live fully independently, but who lack the financial means for subsistence. The commenter said that the proposed application of nursing home requirements for State home domiciliaries would threaten the State home's ability to maintain this practice “because the Veterans would not meet the new requirements of domiciliary care,” potentially resulting in some residents being without a housing alternative.
Though we are not making any changes in response to this comment, we should clarify that the new regulations do not change eligibility requirements for residents to require that they be in need of nursing home care, nor will the rule change eligibility requirements for any veterans receiving domiciliary care. Furthermore, as discussed above regarding specific nursing home requirements, we are easing the proposed application of multiple nursing home requirements on State home domiciliaries. This final rule will not require Veterans to be displaced in the manner the commenter described.
Another commenter asserted that VA should have regulations requiring all cash donations to a State home be made known to the residents, and that legacy accounts (accounts of deceased residents) be made known to the residents and to the public.
We disagree with this suggestion. Donations to the State home, and any disclosure, would be the subject of State law. All States have laws governing access to public records like this. If the commenter believes that State laws need to be changed, we recommend that the commenter seek action at the State level. Requiring States to change their laws governing such access is beyond the scope of this rulemaking. Regarding the commenters concern about legacy accounts, current regulations governing residents' funds are sufficient to regulate the State home's handling of those funds. Current regulation, 38 CFR 51.70(c) Protection of resident funds, applies to domiciliary care programs through final § 51.300. It provides for the handling and accounting for a resident's funds on deposit with a State home, including their final accounting and conveyance upon a resident's death. The regulation also provides that each resident is to have personal control of the resident's funds, that the State home cannot require the resident to deposit the funds with the State home, that the State home account for the funds to the resident or to a resident's legal representative, and that the state make a final accounting and conveyance of funds to the individual or probate jurisdiction administering the resident's estate or other appropriate entity. These rules together are consistent with treating the residents' finances as a private matter, even after death. We make no change based on this comment.
We have made multiple changes to § 51.310. Some are in direct response to comments, and some simply improve organization, clarity, and readability. We have revised the heading to read, “Resident admission, assessment, care plan, and discharge”, to be more descriptive of the scope of the section. We have rearranged provisions, grouping related provisions together and putting them in the sequence the State homes will generally apply them. This reduces the number of paragraphs in the section from the proposed introduction plus five paragraphs, (a) through (e), to introduction plus four paragraphs, (a) through (d). We have inserted the words “medical and comprehensive” before “assessments” in the introduction, and inserted “comprehensive” before “assessment” throughout the section, to indicate they are different. The medical assessment informs the State home of the new resident's medical status and immediate needs on admission. The
Three commenters asserted that the unknown cost of having physician's orders for each resident's immediate care and an assessment including medical history and physical examination within 72 hours of admission, as proposed § 51.310(a) required, would be excessive. The commenters compared the proposed requirements with the 1986 Guide, which required that the domiciliary provide and maintain a treatment plan for each domiciliary patient.
We partly agree and partly disagree. We agree that 72 hours is not always enough time to perform the assessment with medical history and examination. We have changed proposed § 51.310(a) to allow 7 calendar days for the medical assessment, which is consistent with VA practice for its domiciliary care program and will provide the State homes with ample time to perform an assessment of the resident. We have clarified that the assessment upon admission is a medical assessment, adding “and medical assessment” to the paragraph (a) heading, to read, “(a) Admission orders and medical assessment.” This will distinguish this assessment from the comprehensive assessment identified in the introductory paragraph and in paragraph (b). We have also added a last sentence to paragraph (a), “The medical assessment will be part of the comprehensive assessment.” This makes clear that a medical assessment is part of the comprehensive assessment, consistent with the inclusion of a physician among the practitioners listed among those to do the comprehensive assessment described in paragraph (b) of this section.
Further, for clarity and certainty, we redesignated paragraph (b) to allow the State home 14 calendar days after admission to complete the comprehensive assessment and redesignated paragraph (c) to allow 21 calendar days after admission to develop the comprehensive care plan. As proposed, § 51.310(d)(2)(i) required a treatment plan be “Developed within 7 calendar days after completion of the comprehensive assessment,” but there was no deadline for the comprehensive assessment. Without a deadline for the comprehensive assessment, the proposed rule was uninformative and afforded poor guidance and no certainty about when the treatment plan might be done. Compared to the proposed process from admission to care planning, these changes afford more overall flexibility while also providing more useful guidance to the State homes and more certainty for the State homes and for VA. Also, we have added “annually, and as required by a change in the resident's condition” at the end of paragraph (b)(1). Though this restates a phrase of the introduction to § 51.310, we feel it is necessary to avoid any impression that the paragraph (b)(1) requirement to do a comprehensive assessment on admission contradicts the requirement of annual and as needed comprehensive assessments in the introduction. Paragraph (b)(2) describes the purpose of the comprehensive assessment to distinguish it from the medical assessment.
We disagree with the comment that physician orders for immediate treatment should not be required upon admission. Admitting a resident into a residential program with unknown current health needs is an unreasonable risk, both for the patient and for other residents of the domiciliary, although we recognize that this recommendation was made under the assumption that VA would require doctor orders and the complete assessment no later than 72 hours of admission. We have revised the section to distinguish between the medical assessment required shortly before or soon after admission and the subsequent comprehensive assessment, of which the medical assessment is part. As changed, the paragraph allows 7 calendar days after admission to complete the medical assessment. This clarification and other changes to this section provides the State homes with more flexibility in completing the medical assessment and makes the physician orders requirement perfectly reasonable in light of its importance. Consequently, we decline to eliminate the physician orders requirement. We have eliminated the proposed provision that “physician orders may be submitted when available” from § 51.310(a), because it is essential to know of immediate medical needs at the time of admission, and it is inconsistent with the changes in this final rule.
VA received comments saying the requirement that the medical assessment be performed by a physician rather than a nurse is overly burdensome and unnecessary because domiciliary residents are generally in better health and have fewer medical needs than nursing home residents. We agree that a physician need not perform the resident's medical assessment upon entering a domiciliary care program. We have therefore changed proposed paragraph (a), Admission orders and medical assessment, to provide that “a physician, or other health care provider qualified under State law” must perform the assessment.
We have removed proposed paragraph (b), which provided, “The State home must use the results of the assessment to develop, review, and revise the resident's treatment plan.” Initially proposed paragraph (c), “coordination of assessments,” is redesignated paragraph (b) and renamed to place this provision in the context of comprehensive assessments. As restructured, the section now flows functionally from (a), admission and medical assessment, through (b), comprehensive assessment, to (c) comprehensive care plan, and finally (d) discharge report.
VA received comments saying that the proposed global nursing home assessment tool is inappropriate for domiciliary care programs. One commenter noted we based proposed § 51.310 on § 51.110, which requires nursing home care programs to use the Centers for Medicare and Medicaid Services Resident Assessment Instrument Minimum Data Set (MDS), Version 3.0. The commenter asserted the MDS 3.0 does not allow for assessing domiciliary residents.
We did not propose using a global nursing home assessment tool. It appears the commenters misread the notice of proposed rulemaking, which specifically explained there is no national tool for assessment of domiciliary residents as there is for nursing homes. Our intent was to provide State homes with reasonable flexibility in conducting the assessment, which is why proposed § 51.310 stated the assessment objectives and process without specifying an assessment tool.
VA received a comment that in a State with a State-established required assessment tool for domiciliary care,
VA disagrees. Section 51.310(a) does not require duplicative assessments, though it could require the State to augment its assessment procedure. The introduction to this section requires the State home to establish in a written policy how it will complete, implement, review, and revise comprehensive assessments. This allows the State home sufficient flexibility to use its existing assessment tool if it produces an assessment with sufficient information about the resident's emotional, behavioral, social, and physical needs to inform a comprehensive care plan targeted as meeting those needs. We will not change the regulation to explicitly provide that States may use any assessment tool it may have because there would be no assurance that the assessments would be comprehensive enough. Nor is it practicable for VA to review States' assessment tools for sufficiency, and then monitor them for continued sufficiency subsequent to any revision. We do not require the State homes to use an assessment tool specifically designed for nursing homes. We require the assessment to be adequate to inform the comprehensive care plan. We believe this section is flexible enough to enable the State to avoid the cost of duplicative assessments, while providing for the health and wellness of State home domiciliary residents. We make no change based on this comment.
In response to comments on § 51.51 about residents' work in the State home as part of a comprehensive care plan, discussed above, we have added paragraph (c)(1)(ii) to this section, providing that a comprehensive plan must describe: “The specific work the resident agrees to do to share in the maintenance and operation of the State home upon consultation with the interdisciplinary team, and whether that work is paid or unpaid”. This identifies with whom the resident agrees to perform certain work, and also that the agreement is about which work the resident will do to share in the maintenance and operation of the State home, not whether the veteran agrees to do some work.
We have changed the proposed description of the purpose of the comprehensive care plan. Proposed paragraph (d)(1) provided the comprehensive care plan is “to address the resident's physical, mental, and psychosocial needs”. In light of comments received and described above about the role of mental health and other specialty care services in domiciliary care, we feel a change in terminology would allow State homes to better understand and implement this provision. As changed, redesignated paragraph (c)(1) says the comprehensive care plan is “to address a resident's emotional, behavioral, social, and physical needs.” To allow care providers the flexibility to ensure the comprehensive care plan best reflects each resident's needs, we have also added to the last sentence of paragraph (c)(1) a provision that the comprehensive care plan must describe the items listed, “as appropriate to the resident's circumstances.”
We have deleted the reference to § 51.350 in proposed paragraph (d)(1)(i), “as required under § 51.350;”. The reference made sense as proposed, because § 51.350 would have applied all of multiple nursing home regulations to domiciliary care programs. As revised, § 51.350 does not apply most of those nursing home regulations to domiciliary care programs, and removing the reference is consistent with the flexibility we intend final rule § 51.310(c)(1)(i) to allow.
We have also changed the reference to “the resident's exercise of rights under § 51.300, including the right to refuse treatment” in proposed paragraph (d)(1)(ii). As revised and redesignated paragraph (c)(1)(iii), the paragraph reads, “Any services that would otherwise be required under § 51.350 but are not provided due to the resident's exercise of rights under § 51.70, including the right in § 51.70(b)(4) to refuse treatment. This change provides the reader a more direct reference to the substantive provisions concerned. Though the proposed reference to § 51.300 is correct, it is indirect. Reference to § 51.300 requires the reader to ascertain that § 51.300 applies § 51.70, so the reader must then look to § 51.70 for the substantive provisions. This change of cross reference simplifies finding the provisions to which the paragraph refers.
In § 51.310, we changed proposed paragraph (d)(2)(i), which would have required the State home to complete a comprehensive care plan within 7 calendar days of completion of the assessment. As revised, redesignated paragraph (c)(2)(i) requires the State home to develop a comprehensive care plan no later than 21 calendar days after admission. This lets the State home manage time and resources better, potentially allowing more than 7 calendar days to complete the comprehensive care plan if the comprehensive assessment is completed in less than the time allowed. It also affords certainty about when the State home will have a comprehensive care plan for each resident.
Proposed paragraph (d)(2)(iii), redesignated paragraph (c)(2)(iii), provided for periodic review and revision of the comprehensive treatment plan. We determined that final paragraph (c)(2)(iii) would provide clearer guidance if it tied in with the introduction of paragraph (c)(1). Towards that end, we have changed the periodic review and revision to be “consistent with the most recent comprehensive assessment”. With this change, paragraph (c)(2)(iii) reads, “Reviewed periodically and revised consistent with the most recent comprehensive assessment by a team of qualified persons no less often than semi-annually”.
We also determined that redesignated paragraph (c)(2) did not complete the logical progression of the paragraph. The point of periodic review is to change the treatment plan if the review reveals it needs to change. We believe it is implicit in the § 51.310 introductory requirement to reassess a resident promptly after every significant change in condition that the comprehensive care plan must also change promptly in response to a significant change in the resident's condition. Consequently, we have added “; and” at the end of final paragraph (c)(2)(iii), followed by new paragraph (c)(2)(iv), which reads, “Revised promptly after a comprehensive assessment reveals a significant change in the resident's condition.”
Proposed paragraph (e)(3) did not state as well as we intended the resident's right to control whether to include a legal representative or interested family member in discharge planning. We have restated that point in redesignated paragraph (d)(2) as an affirmative right.
One commenter requested clarification of the statement in the supplemental information of the proposed rule that the nursing care required in domiciliary care programs “would be similar to what is required in nursing homes, except that we would not require the same level of skilled nursing supervision.” VA received comments that, as proposed, § 51.330 would require State homes to staff domiciliary care programs with the same amount of nursing staff VA
We agree the discussion was not clear about what “similar to” and “level of supervision” meant. We also agree that the proposed requirement could result in increased costs and that domiciliary care program residents may not require a licensed nurse on each shift, if the nursing care needs of the residents are met. We have, therefore, eliminated the proposed requirement that the director of the nursing service designate a licensed nurse as the supervising nurse for each tour of duty. Otherwise, the staffing requirements in this final rule are similar to the existing nursing care requirements for domiciliary care programs in section 5A of the 1986 Guide, which requires an organized nursing service of personnel qualified to meet the nursing care needs of the domiciliary patient. The final rule, however, clarifies that the residents' individual comprehensive assessments and comprehensive care plans determine their need for nursing services, and that need must be met 24 hours a day, 7 days a week. We continue to believe this is a reasonable and necessary requirement for availability of nursing care.
One commenter said that some states have regulations prescribing staffing levels for State homes. The commenter described the staffing level required by its Residential Care Home Licensing Regulation. The commenter recommended VA permit states with regulatory staffing levels to follow those regulations and that VA provide a regulation for states without a State regulated staffing level.
We decline to make the commenter's recommended change. Section 51.330, as revised, articulates VA's view of the minimum safe staffing for nursing care in State home domiciliary care programs. VA would not be comfortable relying on staffing levels set by the State because they might not meet that minimum. So, to allow the exemption from § 51.330 the commenter seeks, VA would have to review each State's regulation to assure it requires staffing equivalent to the minimum level VA considers acceptable. Such a plan would require a way for VA to know if any State's regulation changed, to again review the regulation, and to maintain a procedure for disallowing states from the exemption if a change permitted an unacceptable level of nurse staffing. This is not a practicable scheme for VA. We believe that if a state's regulations require nurse staffing equivalent to the level VA considers minimally acceptable, the cost cannot be significantly different from the cost of compliance with § 51.330, and the state would not realize any cost savings from the exemption. Consequently, we make no change based on this comment.
One commenter asked whether facilities with “co-located” domiciliary care and nursing home care programs on the same property or in the same building must have a director of nursing for each or if they may share a director of nursing. The commenter also asked whether the two programs can share the supervising nurse for each tour of duty, and whether a “tour of duty” is the same as a shift.
We intend the State homes to have the flexibility to staff their programs to ensure that all residents get the nursing care each resident's comprehensive assessment indicates each resident needs. The regulation does not preclude sharing a nursing director. A shared nursing director would comply with the regulation only, however, if the State home can ensure it meets the total nursing care needs of all residents in the facility. This final rule eliminates proposed § 51.330(b), which required a licensed supervising nurse for each tour of duty, so the questions about a shared nursing supervisor and whether a tour of duty is the same as a “shift” are moot.
VA received comments about the requirement in proposed § 51.340 that State homes provide necessary primary care to domiciliary residents. Commenters objected to the proposed requirement in this rule, and raised concerns about the definition of “primary care” in the VA General Counsel Precedent opinion ruling that State home domiciliary care programs must provide primary care to be entitled to per diem payments. VAOPGCPREC 1-2014 (Mar. 21, 2014). Some commenters objected to the General Counsel's inclusion of surgical services in primary care, and some objected to its inclusion of mental health services in primary care. The commenters said surgical services and mental health services are generally considered specialty care, and VA should define primary care in the same manner as Medicare.
We recognize the confusion about what is included in primary care, which has resulted from the General Counsel opinion and the proposed rule, and therefore clarify that we do not consider primary care as including comprehensive mental health or surgical services. We thus do not consider § 51.340 as requiring a State home to provide domiciliary residents either surgical or comprehensive mental health services—only to assist residents with obtaining these services. See also section 51.2 of this rulemaking, which defines domiciliary care as including “necessary medical services” that are described in subpart E. Nothing in subpart E requires State domiciliaries to provide either surgical or comprehensive mental health services. We note, however that under this subpart (§§ 51.300(f)-(g), 51.320(d), 51.340), the State home is required to provide basic mental health screening. We acknowledge that proposed § 51.340 was unclear about what mental health services the State home domiciliaries would be required to provide without many of the clarifications in this final rule. The final rule requires the State home to provide “its residents the primary care necessary to enable them to attain or maintain the highest practicable . . . mental, and psychosocial well-being.” Though this could be misread to mean the domiciliary must provide all care necessary to attain or maintain mental health, we believe it is clear that it requires the domiciliary to provide only the necessary primary care. The State home discharges its obligation to enable its residents to attain or maintain mental and psychosocial well-being when it provides primary care. It further requires the State home to assist its residents to obtain other care when a resident needs care other than care the State home must provide. So, if the veteran needs mental health care other than that required by subpart E, the State home must assist the resident to obtain that care.
One commenter objected to the primary care requirement because it would substantially increase state expenses and undermine a resident's ability to obtain care from a physician of his or her choice. The commenter said the primary care requirement would require residents to abandon their existing physicians and mental health specialists, significantly reducing State home admissions and negatively affecting current residents.
One commenter stated medical care should be the veteran's choice when the veteran is capable of making the choice. The commenter did not address the
This regulation will not prevent State home domiciliary residents from seeing the private health care providers they choose to see. The § 51.340 requirements do not mean a resident may not see a private physician of his or her choice or must abandon an existing relationship with a private healthcare provider. Further, domiciliary residents retain the right to receive care from their private physicians in the State home domiciliary, provided the physician is credentialed and privileged in the State home. If the commenter means the veteran should have the choice whether to receive medical care, the veteran may refuse treatment under § 51.300, which applies to domiciliary residents the right to refuse treatment as prescribed in § 51.70(b)(4). We make no change based on these comments.
Furthermore, it is unclear why the commenter believes costs would increase; it may be because of the assumption that VA intended to include mental health and surgical services in primary care. The guidelines under which the State home domiciliary care programs have long operated required each resident to have a primary care physician responsible for the resident's medical care, and required that primary care medical services be provided for residents as needed. Section 51.340 imposes no additional primary care burdens or costs. Further, these regulations would not preclude States from charging the veteran's insurance for providing primary care. We make no changes based on this comment.
VA received a comment requesting a “thorough and explicit definition of what primary care entails.” The commenter was “concerned that the proposed rules would transfer all medical costs associated with resident care to the state and nullify existing sharing agreements” with the local VA facility. Another commenter also raised essentially the same points about the extent of health care the proposed regulations require and about transferring costs and sharing agreements, asserting the burden of shifting primary care costs could make operating domiciliary care unsustainable.
The regulation, as proposed, does not specifically define primary care, and we believe the common dictionary definition VA General Counsel quoted in the precedent opinion cited above is sufficient and widely used. VA declines to define primary care with a list of specific medical services. We disagree that lack of definition of primary care could affect the commenter's primary care sharing agreement with a local VA medical facility. Under the final regulation, this arrangement may continue. The State currently pays for the primary care VA provides through a sharing agreement, so there is no cost to transfer to the State. We make no change based on this comment.
VA received a comment saying that providing additional medical services would be especially burdensome to some State homes that were built in remote locations to care for veterans in underserved communities. Those homes, the commenter stated, currently experience hiring challenges and staffing shortages, and the new requirements would pose challenges and costs associated with hiring additional staff or contracting with outside providers.
We understand that staffing or otherwise obtaining the required services can be more difficult in some areas than others, whether because of remote location and a small labor pool, or because of a central, densely served market with stiff labor competition among employers. The primary care VA requires State homes provide is essential to the health, safety, and well-being of the domiciliary care residents. We will not eliminate or reduce the requirements in response to the vagaries of the local labor market. We make no change based on this comment.
VA received comments that the State home domiciliary care standards in the 1986 Guide, required that a resident be seen annually and as needed by the primary care physician or other licensed medical practitioner. The proposed rule, however, specified that the resident must be seen by the primary care physician or licensed medical practitioner at least every 30 days for the first 90 days after admission, and at least once annually thereafter, or more frequently based on the condition of the resident. The commenter said this requirement would result in a cost burden to the domiciliary, potentially a 100% increase in physician visit costs.
We agree with the commenter that more frequent primary care physician's visits than the State homes have been accustomed to providing will increase the State homes' costs. We also agree a domiciliary resident need not be seen every 30 days for the first 90 days of residency. The typical domiciliary resident's health does not require the frequency of medical monitoring we proposed. We have changed the requirement in § 51.340(d) to require an annual medical assessment, restating the provision in the active voice to read, “The primary care physician or other licensed medical practitioner must conduct an in-person medical assessment of the resident at least once a calendar year, or more frequently based on the resident's condition.” Though redundant of the annual medical assessment § 51.310 requires, it is useful also to restate here to consolidate the requirements regarding physicians and other medical practitioner services. This change also eliminates the colloquial expression “be seen” in favor of the more precise term “assessment.”
One commenter interpreted proposed paragraph (e) to mean the domiciliary must provide or arrange for physician or other licensed medical practitioner services 24 hours a day, 7 days a week, in case of an emergency. The commenter also asked for clarification whether the provider must be on site or may be on call.
We did not intend the commenter's interpretation of the provision, which states, “The State home must assist residents in obtaining emergency care.” Though a State home certainly may staff its facility at all times, the provision does not require it. It requires only that the facility management be able assist the resident in obtaining emergency care. For example, a telephone call to local 911, if available, could comply with § 51.340(e). We make no change based on this comment.
Proposed § 51.350 would have applied all of the standards applicable to State home nursing homes at §§ 51.140, 51.170, 51.180, 51.190, and 51.200 to State home domiciliary care programs. We are making multiple changes to this section. These correct errors in the proposed rule, respond to comments, and will serve the needs of State home domiciliary care programs and their residents better than would the proposed application of the whole of the sections we proposed to apply.
We are removing the phrase “nursing home and nursing facility” from the last sentence of the introduction to proposed § 51.350. Its use was an error. The cited regulations use the term “the facility,” but not, “nursing home” or “nursing facility.” As revised, the sentence reads, “For purposes of this section, the references to `facility' in the cited sections also refer to a domiciliary.”
VA received comments opposing the imposition of the whole of these regulations on domiciliary care
We agree that certain standards that proposed § 51.350 would have applied to domiciliary care programs are impracticable or inappropriate. Consequently, we have revised proposed § 51.350, to exclude § 51.140(f)(2)-(4), § 51.180(c), and § 51.200(a), (b), (d)(1)(ii)-(x), (f), and (h)(3) from application to domiciliary care programs. In addition, we will exclude other provisions as discussed below. Though the mechanism for setting the rate of per diem payment is prescribed by statute, we anticipate these changes will also reduce the costs of compliance.
Section 51.140(f), Frequency of meals, requires nursing home residents to receive and nursing homes to provide three meals per day at regular times comparable to normal meal times in the community. Paragraph (f)(4) of that section allows an interval of 16 hours between dinner and breakfast if a nourishing snack “is provided” at bedtime. Consistent with comments about applying § 51.140 to domiciliaries that asserted the generally greater independence of domiciliary residents than nursing home residents, we have added § 51.350(a) to apply to domiciliaries instead of paragraph (f)(2)-(4). Paragraph (a)(1) requires no more than a 14-hour interval between the evening meal and breakfast. Paragraph (a)(2) requires the facility staff to offer snacks at bedtime daily, as does § 51.140(f)(3). Paragraph (a)(3) allows 16 hours between the evening meal and breakfast when the bedtime snack is nourishing. The difference between the domiciliary regulation and the nursing home regulation is the difference between whether the nourishing snack “is offered” or “is provided” to residents. This difference takes into account the greater independence of domiciliary residents, who can maintain adequate nutrition without the monitoring the nursing home requirement entails. It is, however, the nutritional character of the offered bedtime snack, not the resident's independence in whether to eat it, that affords the State home the additional two hours between the evening meal and breakfast.
Some commenters objected to the proposed monthly drug regimen review required under § 51.180(c)(1), saying that compared to the semiannual drug regimen review required for domiciliary residents in the 1986 Guide, the proposed rule would result in a significant cost increase.
VA agrees with the commenters. The intent of the proposal, to preserve the health and safety of State home domiciliary residents, can be met with a semiannual drug review. We have added § 51.350(b), which requires a drug regimen review at least once every six months and included the requirement in § 51.180(c)(2) requiring a report and action if any irregularities are found.
VA received comments objecting to the burdens of bringing State homes providing domiciliary care into compliance with the requirements of § 51.200, Physical environment. Multiple commenters said that transition-based programs are not currently required or able to meet many of the physical or plant features included in the nursing home standards. The commenters paraphrased or quoted provisions of § 51.200 to illustrate nursing home requirements they asserted domiciliary care facilities could not meet. Among these paraphrases or quotations were “provide adequate room space in most rooms,” apparently based on § 51.200(d)(1)(i)-(iv); “provide sufficient privacy (ceiling suspended curtains extending around beds for total visual privacy) in rooms with more than one resident,” apparently based on § 51.200(d)(1)(vii)-(viii); “provide prescribed storage space for residents,” apparently based on § 51.200(d)(2)(iv); “have a resident calling system directly to nursing,” apparently based on § 51.200(f); and “have corridors equipped with handrails,” paraphrasing § 51.200(h)(3). We construe these comments as references to these provisions because we do not interpret the commenters to literally oppose providing “adequate privacy,” or “sufficient privacy.”
In response to the comments, we have excluded § 51.200(a), § 51.200(b), § 51.200(d)(1)(ii-x), § 51.200(f), and § 51.200(h)(3) from application to domiciliaries, as noted above. In place of the privacy requirements in § 51.200(d), we have provided for “visual privacy” in § 51.350(d), which reads, “The facility must provide the means for visual privacy for each resident.” This is based on § 51.200(d)(1)(vii), which requires nursing home bedrooms “[b]e designed or equipped to ensure full visual privacy for each resident.” Section 51.200(d)(1)(viii) further specifies that the nursing home bedrooms (other than private rooms) must have “ceiling-suspended curtains,” further specifying their placement and specifying other furnishings of the room to ensure “visual privacy.” We intend this § 51.350(d) to afford the State homes reasonable flexibility in finding a way to let the domiciliary resident sleep or change clothes or do other ordinarily private things without being watched or in open view of other residents.
While many of these requirements are essential to the health, safety, and well-being of the domiciliary residents, we agree with the commenters that some would pose an excessive burden to State home domiciliaries and are more appropriate for nursing home care than domiciliaries, because domiciliary residents remain more independent. For those reasons, in this final rule, we will not apply to domiciliaries the following environmental requirements: § 51.200(d)(1)(ii-x) regarding resident bedrooms; § 51.200(f) regarding resident call systems; and § 51.200(h)(3) regarding handrails. All of these requirements are more aligned with skilled nursing home care then they are with domiciliaries, and they are not requirements in VA domiciliaries.
VA received a comment that the cost of renovations and upgrades to meet the environmental requirements would total hundreds of millions of dollars nationwide, and the facilities would be forced to compete for funding with the limited resources in VA's State home construction grant program. We agree as discussed above that some of the proposed requirements were too burdensome, and we revised the regulation accordingly. We also agree that applications for grants from VA to meet the cost of complying with a § 51.350 requirement might compete with applications to fund other projects in the construction grant program, but life and safety projects are given priority over all other types of construction when VA determines whether to award construction or acquisition grants. (See 38 CFR part 59 for regulations governing grants to States for construction or acquisition of State homes.) We have revised the final rule to ease the burden of compliance with the specialized services and physical requirements for State home domiciliaries; the rest of the requirements under § 51.350 are essential to the health, safety, or well-being of domiciliary residents and cannot be eased or removed.
One commenter asked VA to “grandfather in” (
VA received a comment that imposing the nursing home fire safety standards of § 51.200 would “drive many homes out of business,” saying State homes would have to reconsider providing domiciliary care altogether and perhaps provide only nursing home care.
We agree that some of the fire safety rules that apply to nursing home care programs are inappropriate for domiciliary care programs, because of the differences in the services they provide. Specifically, we will not require State home domiciliary care programs to meet NFPA 99, Health Care Facilities Code, as § 51.200(a) requires of State nursing home programs. We are, therefore, changing proposed § 51.350 by adding a new paragraph (c) that only requires State home domiciliaries to meet the “applicable” requirements of NFPA 101. We have changed the introduction to § 51.350 to exclude § 51.200(a) from application to domiciliaries.
We have also determined it would be inappropriate to apply the nursing home emergency power requirements of NFPA 99 to domiciliary facilities. NFPA 99 prescribes emergency generator specifications for nursing homes. It is not necessary or appropriate to require State home domiciliaries to have emergency power generating equipment that meets the NFPA 99 specifications of the sort appropriate to nursing homes and specified in § 51.200(b). The applicable provisions of NFPA 101 regarding emergency power will apply instead under § 51.350(c). We have thus changed the introduction to § 51.350 to exclude § 51.200(b) from application to domiciliaries.
One commenter, observing the proposed rule appeared to require a level of care for domiciliary residents that mirrors nursing home care, suggested it would have been beneficial to review assisted living regulations across the country because most State home domiciliaries are also licensed by their state's assisted living regulatory licensure and compliance.
We disagree about the benefit of reviewing State assisted living regulations. State assisted living regulations are not pertinent to VA's program of payment of per diem for veterans in State home domiciliary care programs. VA does not pay for assisted living. Veterans residing in a State home must meet the eligibility criteria either for a nursing home care program or for a domiciliary care program. The State home must meet VA's standards for receipt of per diem for those veterans. Moreover, VA must administer a nation-wide program. Consequently, we choose to have regulations of uniform, nation-wide application. These may be like some State assisted living regulations and unlike others, but State assisted living regulations are not an appropriate model for VA per diem regulations. We make no change based on this comment.
VA received a comment reporting grievances about conditions at State home domiciliary programs and asking VA to apply all of the regulations governing per diem payments to State home nursing home care programs to State home domiciliary care programs. The commenter urged VA to afford domiciliary care program residents the same care provided nursing home residents. The commenter requested that VA effect that change by issuing a VA General Counsel opinion. The commenter argued for immediate implementation of this opinion as a “regulatory instrument” until VA publishes domiciliary per diem regulations. Specifically, the commenter recommended as the “holding” of the opinion, “[I]n order for a State to receive per diem payments from the VA for a resident in its State home domiciliary, the home must provide domiciliary care to the resident (or residents) in accordance with 38 CFR 51, the current VA regulation outlining long-term care of veterans in state nursing homes.” The commenter requested specific VA officers implement the suggested General Counsel opinion.
Another commenter reported that a specific State home conducts residents' room inspections, threatens sanctions for [resident] non-compliance with the State home rules, schedules re-inspections, and then fails to follow through. The commenter stated this lack of follow through “leaves us dangling,” and demonstrates the “ad hoc” management of the State home.
Another commenter expressed grievances about a State's administration of a State home, including concerns that the domiciliary housed veterans unable or unwilling to meet the personal hygiene requirements for residency, allegations of failure to maintain the facility, allegations of failure to spend VA per diem payments on or on behalf of the residents, or of diverting the funds into the State's general fund. The commenter requested VA to regulate specific oversight, staffing, financial accounting, and expenditure requirements. Specifically, the commenter requested a regulation requiring “all monies that the VA gives to the States for these Homes be placed in a separate account that can only be used for the Home.”
We decline to add a regulation to implement the suggestion regarding dedicated accounts. VA monitors each State home's census and its expenditures on nursing home, domiciliary, and adult day health care services. The State home must report the census of each program and submit a claim for per diem payments monthly on VA Form 10-5588. See § 51.42 of this rulemaking. By statute, VA “shall have no authority over the management or control of any State home.” 38 U.S.C. 1742(b). We believe establishing the regulation the commenter seeks would constitute management or control of State homes, contrary to the statute, and would violate that law. We make no change based on this comment.
Regarding the commenters' grievances relating to specific State homes, VA takes reports of grievances from residents of State home domiciliaries seriously; however, VA is unable to adjudicate the grievances in this rulemaking. The commenters are encouraged to voice their grievances directly with the State homes, which are better able to address such grievances. We note that § 51.300 now makes the nursing home standards regarding grievances applicable to State domiciliary care programs and these standards include the resident's right to voice grievances and have the facility implement prompt efforts to resolve these grievances. We further note that State homes must satisfy these standards to receive per diem. Again, specific allegations are best raised directly with the State home. VA therefore makes no changes based on this comment.
Regarding application of all of the State home nursing home program regulations to State home domiciliary care programs, we decline to do so for the reasons previously stated in this preamble. To briefly reiterate, many nursing home regulations would provide little benefit to domiciliary residents, or even be a detrimental burden, while imposing excessive operational constraints and costs on the States. This rulemaking, however, applies to the domiciliary care programs
We decline to implement the request the commenter submitted in the form of a suggested VA General Counsel opinion the commenter authored seeking to have the Secretary of Veterans Affairs assign certain named VA officers to implement the requested changes. The Secretary's statutory authority includes delegation of certain authority to certain subordinate VA officers, but direct assignment of responsibilities to specific VA officers is beyond the scope of this rulemaking. VA therefore makes no changes based on this comment.
VA received comments recommending that part 51 “further define the sovereign powers of the Resident Councils.” The commenter proposed the creation of a National Association of State Veterans Homes Domiciliary Residents' Councils under the auspices of VA Geriatric and Extended Care Services. The commenter provided some details as to how the relationship should be between council members, residents and a VA liaison. The commenter also requested that VA provide whistleblower protections for State home residents who report unethical, illegal, or criminal conduct by a State home or VA employee or office, so that State homes cannot evict residents for speaking up.
Although we decline to make the specific changes this commenter requested, this rulemaking does implement protections for State home domiciliary residents that formerly applied only to nursing home residents. Section 51.300 requires domiciliaries to apply the provisions of §§ 51.70 and 51.100 not otherwise excluded from § 51.300. Among these are § 51.70(b)(6)(ii) requiring the State home to notify residents of the right to file complaints; § 51.70(j)(1)(iv) guaranteeing access to the State long term care ombudsman; § 51.100(c) requiring the State home to document any concerns the resident council submits; and § 51.100(d)(6) requiring the State home to listen to the views of any resident or family group, including the resident council, regarding policy and operations decisions affecting resident care and life in the facility. State home domiciliary residents thus will now have recourse for redress of grievances. We therefore make no change based on this comment.
We have clarified the language of proposed § 51.410(b), which provides the residents' right to be informed about the possible reasons for a transfer or discharge from the program. We make no substantive changes.
We have changed the proposed heading of paragraph (c) to read, “Notice before transfer or discharge.”, to be more descriptive of the text of the paragraph.
VA received comments asking to revise paragraph (c)(1), which requires the State home to notify the participant or his or her legal representative prior to a transfer or discharge. The commenters wanted “or” in the first sentence to be revised to “and/or”. VA believes that the intent of this recommendation is to allow the State homes to notify, or ensure the State homes notify, both participants and their legal representatives. In fact, the requirement to notify the participant or the representative does not preclude the State home from notifying both if that is the participant's choice. The “and” alternative of “and/or” would, however, permit the provision to be read as requiring notice to the participant “and” to the representative. We intend to afford the participant control of whether the State home notifies a legal representative, a family member, or both. On further review, we see that as written, “Notify the participant or the legal representative of the participant,” could permit the State home to notify someone other than the participant and not notify the participant. To make clear the participant's right to decide who besides the participant the State home notifies of a transfer or discharge, we are revising § 51.410(c)(1) to read as does the revision to the domiciliary notice of transfer or discharge provision, discussed above. As revised, paragraph (c)(1) reads, “Notify the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner he or she understands. The resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes.”.
VA received a comment requesting changes to § 51.410(e)(5), which as proposed read, “The name, address and telephone number of the State long-term care ombudsman.” The commenter stated the Older Americans Act Ombudsman program did not apply to adult day health care programs and recommended paragraph (e)(5) be revised as follows: “The name address and telephone number of the State home's State Department of Health and/or the appropriate State Department of Social Services representative.”
The commenter raised the prospect that a State might not have an ombudsman who advocates for participants in a State home adult day health care program. The proposed requirement derives from § 52.70(h)(1)(iii), which requires State home program management to provide the State long-term care ombudsman with immediate access to participants. The object of proposed § 51.410(e)(5) was to ensure the notice of transfer or discharge includes information how to seek help if the participant objects to the transfer or discharge. We are changing § 51.410(e)(5) to address the possibility that a State does not have a long-term care ombudsman or any ombudsman responsive to State home adult day health care participants. We decline to use the “and/or” construction the commenter suggested, because it would permit the State to provide the contact information only for an impersonal state agency possibly difficult to navigate instead of providing the contact information of an ombudsman or other known advocate. We acknowledge, however, that the proposed requirement could be insufficient. We are changing paragraph (e)(5) by adding “the first listed of the following that exists in the State:” following “The name, address and telephone number of”. We are further revising the paragraph by adding after the paragraph (e) introductory language, the following: “(i) The State long-term care ombudsman, if the long-term care ombudsman serves adult day health care facilities; or (ii) Any State ombudsman or advocate who serves adult day health care participants; or (iii) The State agency responsible for oversight of State adult day care facilities.” We intend the order of precedence and other changes to afford the participants the intended protection, with little additional burden to the State homes. These changes are a logical outgrowth of the comment. We have removed from proposed paragraph (g)(1) the phrase “, and ensured of timely admission to the hospital”. We have also changed “and” to “or” in both instances of the phrase “transfer and discharge.” The State home will transfer “or” discharge a participant, as circumstances require. There is no action called “transfer and discharge.” As revised, the paragraph reads, “Participants will be given a transfer or discharge from the adult day health care program to the hospital when transfer or
VA received comments objecting to the storage requirement of § 51.420(g)(3), saying that in the State homes' experience, adult day health care participants need lockable storage on a very limited basis because they do not live at the State home. They recommended the participants be made aware that lockable storage is available, and that the homes provide it upon request. They suggested a locked closet with individual storage bins would be sufficient to secure a participant's change of clothes, and that the State home should also provide a coat closet for daily storage of coats, etc.
We agree that the proposed individually lockable storage is not necessary in the adult day health care setting. We proposed that each private storage space be lockable to afford security for wallets, purses, and the like, and we agree the availability of locked storage for those who wish to use it is sufficient. Accordingly, we have changed § 51.420(g)(3) to read, “Private storage space for each participant sufficient for a change of clothes. Upon request of the participant, the State home must offer storage space that can be secured with a lock.”
As proposed, this section provided for two types of assessments, and as a result of the comments we received we have changed the names of these assessments in the final rule for clarity and to distinguish the initial medical assessment to determine that the veteran is suitable for and well enough to participate in the program and the subsequent assessment done to inform the comprehensive care plan. The assessment that was proposed in paragraph (a) is now called the “initial medical assessment” and the assessment in § 51.425(b) is now called the “comprehensive assessment” throughout the paragraph.
VA received comments that the requirement of § 51.425(a) for new adult day health care participants to have tuberculosis (TB) screening no sooner than 30 days before admission to the program would be an undue hardship on the participant or the participant's care giver because screening can take multiple doctor's office visits. The commenters, referencing an unpublished report of the Centers for Disease Control and Prevention, acknowledged that “elderly nursing home residents are at greater risk for [TB] than elderly persons living in the community.” They noted current VA practice is to allow TB screening upon admission. The commenters requested VA also allow the TB screening to be performed at the adult day health care program no later than 30 days after admission, which would reduce care-giver burden and facilitate admission by eliminating a potential cause of delay.
We agree that allowing the TB screening to be performed after admission to the adult day healthcare program could reduce the veteran and caregiver's burden and facilitate admission. We disagree, however, that 30 days after admission is an appropriate timeframe to complete screening because of the increased risk of TB among the participant population that the commenter identified. We also believe it is unsafe to have a participant in the program any longer than that with his or her medical history and current condition unknown. To allow more flexibility than the proposed rule allowed, while also requiring the history and physical examination with TB testing be done expeditiously, we have changed § 51.425(a) to allow them to be done no later than 7 calendar days after admission.
VA received comments regarding proposed § 51.425(b), which describes the State home adult day health care program's responsibility to conduct comprehensive assessments for each participant, and lists factors the program should consider in each assessment. The commenters recommended that instead of the assessment guidelines in this regulation, VA should allow each State with an established adult day health care program assessment tool to use it, and that States without assessment tools should work with a select group of members of the National Association of State Veterans Homes to develop an assessment tool to adopt as a national standard and submit to VA as an alternative. The commenters noted that the existing regulation requires each adult day health care program use the MDS-HC assessment tool, even though it is not an “industry standard” among adult day healthcare programs, and creating a new tool would solve the existing problem of the lack of a nationally recognized assessment tool and better serve the programs and veterans.
As with the assessments for domiciliary care programs, VA will not change the regulation to explicitly allow State home adult day health care programs to use State-mandated assessment tools, though the homes may do so if those tools meet the requirements in paragraph § 51.425(b). While we appreciate the offer to collaborate on a national tool, we believe that § 51.425(b) provides the States with necessary flexibility to create policies to meet their state's regulatory requirements or their program's needs, while ensuring the health and well-being of participants. We have added an introduction requiring the State home to establish in a written policy how it will complete, implement, review, and revise assessments. In addition to affording the State homes flexibility in devising their methods of assessment, the introduction helps to distinguish between the initial medical assessment and the subsequent comprehensive assessment.
VA received comments recommending that programs should make every effort to coordinate the participant's comprehensive care plan with any existing VA or community provider's comprehensive care plans, as appropriate. The commenters noted many participants seek admission to the State home adult day health care program without prior use of VA services, and often prefer and plan to continue to use their community physician for primary care. Because the State home is ultimately responsible for the care and services provided to each participant, the commenters said they should develop a comprehensive care plan that includes the recommendations of other agencies, including VA.
We agree with these comments. We believe it is consistent with the State home's responsibility to develop the comprehensive care plan that those plans include the recommendations of others providing care to the participant. We believe § 51.425 allows the State home to include the use or adaptation of existing care plans in its assessment and comprehensive care plan policy. We make no change based on this comment.
Based on the comments regarding § 51.425(b) pointing out that some participants enter State home adult day health care programs without a current care plan, we are removing the requirement from proposed § 51.425(b) that the participant have an individualized comprehensive care plan on “the participant's first visit” because the requirement is unnecessarily
Consistent with the comment that residents might not have a comprehensive care plan upon admission, we are revising proposed paragraph (d) to allow up to 21 calendar days after admission for the State to write a comprehensive care plan for each participant.
We changed certain word choices and phrasing in paragraph (c), but none has substantive effect. We pluralized the word “assessment” in the section heading, and rephrased the first sentence of paragraph (c)(1) to clarify that the assessments must be both conducted and coordinated with the appropriate health care professionals. We changed “the assessment” to “an assessment” in (c)(2) to ensure all assessments are certified. We added (c)(3), “The results of the assessments must be used to develop, review, and revise the participant's individualized comprehensive care plan.” This provision makes clear the ongoing relationships among the participant's assessments, changing condition, and comprehensive care plan.
We are making technical corrections to proposed paragraph (a)(2) of this section. We are removing “, review, and prevent” from the paragraph heading to more accurately state the topic of the paragraph. As proposed, the heading “Duty to report, review, and prevent sentinel events” commingled the topics of paragraphs (a)(2) and (a)(3). We are also striking from § 51.430(a)(2) the phrase “, review, and prevent”, because § 51.430(a)(2) is solely a notice provision, as is § 51.120(a)(3) from which it derives. We are also removing the reference to § 51.120(a)(4) from proposed § 51.430(a)(2) because § 51.120(a)(4) is the review, analysis, and prevention provision applicable to nursing homes. The mandate to review, analyze and prevent sentinel events in adult day health care programs derives from § 52.120(a)(4) and is restated in proposed § 51.430(a)(3). Additionally, § 51.120(a)(4) has a final sentence we did not intend to apply to § 51.430(a)(3). We referred to § 51.120(a)(4) in proposed § 51.430 erroneously.
We have changed the second sentence of proposed § 51.440 so the references in § 51.140 to “resident” apply to a participant “in subpart F.” This clarifies the scope of the application of § 51.140 to the adult day health care program. Because of the other changes we are making to this section, discussed below, the text proposed as § 51.440 is now the introductory paragraph of the section.
To make the per diem regulations more concise and to eliminate repetition between current parts 51 and 52 of title 38 Code of Federal Regulations, we proposed that § 51.440 would apply the nursing home dietary service provisions of current § 51.140 to the adult day health care program. That was partly a mistake. The proposal inadvertently applied nursing home requirements for frequency of meals under § 51.140(f) that would be inapplicable to adult day health care programs. For example, the nursing home bedtime snack requirements have no application to a daytime only program. To correct this error, we have revised the introduction of § 51.440 to exclude application of § 51.140(f), and added the mealtime requirements of current § 52.140(e)(1) and (2) as paragraphs (a) and (b). These requirements are essential to ensure every adult day health care participant receives at least minimal nourishment during each session. Adding these requirements imposes no new burden on the State homes. They merely continue the current timing and nutritional requirements of the adult day health care program without change.
We are revising the introduction of § 51.445. The proposed language mistakenly refers to a physician's order for enrollment, but physicians don't write orders to enroll participants in the adult day health care program; they write orders to admit participants. We have corrected this error in terminology. We have also revised the next to last sentence to be more readable. As revised, the sentence reads, “If a participant's medical needs require that the participant be placed in an adult day health care program that offers medical supervision, the primary care physician must state so in the order for admission.”
VA received comments recommending that VA require all State home adult day health care programs undertake certain practices such as: recording the name of the participant's primary care physician in his or her medical record; requiring that each participant see a primary care physician annually and when there is a change in condition; providing or arranging for acute care when a resident needs it; and ensuring participants are able to obtain emergency care when necessary. The commenters believed these practices should not be restricted only to adult day health care programs that offer medical supervision.
We agree with the first of these recommendations. As proposed, the provision requiring the State home to record the name of each participant's primary care physician is in paragraph (a) of this section, which applies specifically to programs that offer medical supervision. To apply it to all adult day health care program participants, we have moved the requirement from proposed paragraph (a)(2) to the introductory paragraph of this regulation in the final rule, where it applies to the entire section. We redesignated proposed paragraph (a)(3) as (a)(2).
We decline to require that each participant who is in a program that does not offer medical supervision see a primary care physician annually, because such a requirement is unnecessary for all adult day health care programs. We make no change based on this comment.
We decline to require programs that do not offer medical supervision to provide for acute care. State homes may choose to make acute care available, but those services are not by design the intent of social model programs. We make no change based on this comment.
Regarding the final recommendation, proposed paragraph (d), Availability of physicians for emergency care, does require that the management of all adult day health care programs “must ensure that participants are able to obtain necessary emergency care,” and the paragraph applies to all adult day health care programs. As with domiciliaries, the State home can meet the requirement by calling 911 emergency services on behalf of the participant. The State home may provide physicians for emergency care, but VA will not require it. We make no change based on this comment.
For clarity, we have inserted the word “dental” into paragraph § 4.455(a)(1) as proposed to read, “In making dental appointments; and”.
We have changed § 51.470(a), Life safety from fire, to read, “The State home must meet the applicable requirements of National Fire Protection Association's NFPA 101, Life Safety from fire, as incorporated by reference in § 51.200.” We determined that the proposed language was confusing regarding which NFPA codes applied to State home adult day health care programs. This change is for clarity only.
VA received comments agreeing with the space requirements proposed in § 51.470(b), but only for adult day health care programs with medical supervision. They suggested less space be required for programs that do not provide intensive medical services. Specifically, they suggested at least 70 square feet per participant, including office space for staff, as opposed to the 100 square feet required in the proposed rule; and 40 square feet per participant, excluding office space for staff, as opposed to the 60 square feet required in the proposed rule. They said programs that do not provide intensive medical services do not require the same space as those that do, because they do not provide rehabilitative services or require the same specialized equipment as medical model programs.
The space requirements in proposed § 51.470(b)(3) are the same as the ones in current § 52.200(b)(3). Moreover, they are the same standards VA imposes on VA adult day health care facilities. Likewise, we specify these space allotments in the standards for funding VA construction grants. See 38 CFR part 59. We specify these space allotments because we consider them essential to the health, safety, and well-being of the participants. We make no changes based on this comment.
We received comments requesting that VA provide transportation reimbursement to State homes that provide their residents transportation to a VA medical center for medical care, noting VA reimburses veterans for mileage when traveling to and from a VA medical facility for medical services.
The commenter is correct that VA reimburses veterans for their travel expenses through the Beneficiary Travel program. Veteran residents of a State home may be eligible for Beneficiary Travel depending on the purpose of the travel and other factors. Similarly, VA may make a beneficiary travel payment to a person or organization other than the beneficiary when certain factors are met. 38 CFR 70.2 and 70.20 (defining “claimant” for beneficiary travel payments and explaining the application for payment process). This is addressed more fully in 38 CFR part 70. We make no change based on this comment.
One commenter commented on VA's definition of “State” in proposed § 51.2. The commenter said that a judicial decision requires the terms “state” and “federal” be interpreted to encompass any medical care a veteran obtains under the Affordable Care Act anywhere in the world.
VA was not a party to
VA received a comment suggesting we revise the subject heading of this rulemaking to read, “Per Diem for Nursing Home, Domiciliary, or Adult Day Health Care of Veterans in State Homes.” The commenter recommended this rulemaking keep the organization and scope of the proposed rule in several respects. Specifically, that subpart D continues to provide regulations for nursing home care programs and part E for domiciliary care programs.
We decline to change the name of the final rule as the current name adequately describes the content of the rule, and we are keeping the subpart headings and their topics as proposed. We make no change in response to this comment.
The commenter commented that VA should require each State home to employ a regulatory compliance officer who will be a VA employee who resides in the State home to insure the home's compliance with all VA regulations.
VA uses regular surveys of the State homes to ensure compliance with VA regulations governing VA payment of per diem. VA lacks authority to place VA employees on a State home's staff, and adopting this recommendation would blur the line between VA and the State home's independent management. We make no change based on this comment.
In a related comment, another commenter asserted this rulemaking as proposed fails to establish a firm and effective system of legal enforcement by the VA of regulatory compliance and legislative oversight by State Veterans Homes (SVH) of VA Domiciliary Care Standards. A firm and effective VA regulatory enforcement mechanism must be established with respect to State Veterans Homes for the new VA regulation on VA-SVH Domiciliary Care Standards to have maximum positive force and effect.
The commenter recommended enforcing a more visible, professional and proactive role for the State Veterans Home [VISN] Liaison or for the SVH VA Medical Facility Representative as those positions were described in VHA Handbook 1145.01, Survey Procedures for State Veterans Homes (SVH) Providing Nursing Home Care and/or Adult Day Health Care (May 17, 2010). The commenter suggested adding certain duties to those assigned VA officers, including prescribing that VA notify State home residents and resident councils of the existence of these liaison officers, and that those duties be enforced by legislative directives in this rulemaking. The commenter urged that this rulemaking require State Departments of Veterans Affairs to “a) promulgate state legislation that provides regulatory oversight of State Veterans Homes management, administration and operations; and b) promulgate state legislation that provides for the regulatory compliance by State Veterans Homes of VA Program Regulations.”
VA cannot require States to legislate. We disagree about whether this rulemaking provides effective means to ensure compliance with these regulations. We believe the processes prescribed in this rulemaking provide an effective means of oversight and enforcement of compliance with these regulations. These include the surveys for recognition and subsequent certification, provisional certification if needed, and potentially denial of certification, together with the multiple standards the State home must meet to obtain recognition and certification under part 51. Further, we decline to revise the duties of the VA officers as any such consideration would be beyond the scope of this rulemaking.
The same commenter sought amendments of §§ 51.70 and 51.100, providing specific language. Specifically, the commenter sought amendments of § 51.70(a)(1), (a)(2), (b)(9)(ii), (f), (j)(1)(iv), (j)(3), and (m) (including extensive suggestions for creation and management of married quarters); § 51.100(c), (d), (f), and (i).
This comment is distinguishable from the others that addressed the proposed rule's application of §§ 51.70 and 51.100 to the domiciliary care program because it seeks amendment of §§ 51.70 and 51.100. This rulemaking did not
VA received a comment saying that as a resident of a State home in a remote location, a requirement to provide accommodations for family members to stay on special occasions would be a great benefit to veterans with families, and even to those without, but who would remember the happiness of family life and enjoy the presence of families. Another commenter urged VA to require State homes to provide private family visitation space, reporting that family has not visited during the resident's 13 years of residence in a State home for lack of a private visitation room or space.
We appreciate the commenters' desire for State homes to facilitate family visits this way and certainly encourage State homes to do what they can to facilitate family visits. However, providing accommodations for visiting family could be a significant expense for State homes. We thus make no change based on this comment.
VA received a comment that State politics and corruption take precedence over State home residents' welfare. The commenter proposed creation of an oversight group to take legal action against misuse of Federal funds, lest the funds that States have earmarked for the care of Veterans disappear into other accounts in each state.
While we understand the commenter has concerns, the solution the commenter seeks is beyond the scope of this rulemaking. Consequently, we make no changes based on this comment.
One commenter asked that VA “coordinate the impact of the semantic differential between terms,”
The commenter raises points worthy of legal review and perhaps of rulemaking. It is beyond the scope of this rulemaking to harmonize definitions among parts 3, 4, and 51 of title 38, Code of Federal Regulations. The application of definitions in this rulemaking to claims for monetary benefits the VBA administers, including benefits under 38 U.S.C. 1151, and the effect of residency in a State home on any veteran's monetary benefits, are appropriately addressed in an individual claim to VBA for those benefits. They too are beyond the scope of this rulemaking. Whereas the commenter has raised no issue regarding, or requested any change to, the proposed regulations that are within the scope of this rulemaking, we make no changes based on this comment.
Based on the rationale set forth in the supplementary information to the proposed rule and in the preceding discussion, VA is adopting the provisions of the proposed rule as final, with changes as noted.
Title 38 of the Code of Federal Regulations, as revised by this final rule, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible. If not possible, this rulemaking supersedes such guidance.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement, unless it displays a currently valid Office of Management and Budget (OMB) control number. See also 5 CFR 1320.8(b)(3)(vi).
Although this action contains provisions constituting collections of information at 38 CFR 51.20, 51.30, 51.31, 51.42, 51.210, 51.300, 51.310, 51.320, 51.350, 51.390, 51.400, 51.405, 51.410, 51.415, 51.420, 51.425, 51.430, 51.445, 51.460, and 51.475 under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this final rule. The information collection requirements for §§ 51.20, 51.30, 51.31, 51.42, 51.210, 51.300, 51.310, 51.320, 51.350, 51.390, 51.400, 51.405, 51.410, 51.415, 51.420, 51.425, 51.430, 51.445, 51.460, and 51.475 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0160.
Section 51.42 also provides for information collection. The OMB currently approves this information collection under control number 2900-0091.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule affects veterans, State homes, and pharmacies. The State homes that are subject to this rulemaking are State government entities under the control of State governments. All State homes are owned, operated, and managed by State governments or nonprofit organizations created by the State except for a small number that are operated by entities under contract with State governments. These contractors are not small entities. Also, this rulemaking will not have a consequential effect on any pharmacies that could be considered small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review)
OMB has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's regulatory impact analysis can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.026, Veterans State Adult Day Health Care; and 64.053, Payments to States for Programs to Promote the Hiring and Retention of Nurses at State Veterans Homes.
Administrative practice and procedure, Claims, Day care, Dental health, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.
The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on November 9, 2018, for publication.
For the reasons stated in the preamble and under the authority of 38 U.S.C. 1741-1743 and 38 U.S.C. 1745, the Department of Veterans Affairs is amending 38 CFR parts 17, 51, and 52 as follows:
38 U.S.C. 501, and as noted in specific sections.
38 U.S.C. 101, 501, 1710, 1720, 1741-1743, 1745, and as follows.
Section 51.20 and 51.30 also issued under 38 U.S.C. 511, 1742, 7104 and 7105.
Section 51.42 also issued under 38 U.S.C. 510 and 1744.
Section 51.43 also issued under 38 U.S.C. 1712.
Section 51.310 also issued under 38 U.S.C. 1720(f).
The purpose of this part is to establish VA's policies, procedures, and standards applicable to the payment of per diem to State homes that provide nursing home care, domiciliary care, or adult day health care to eligible veterans. Subpart B of this part sets forth the procedures for recognition and certification of a State home. Subpart C sets forth requirements governing the rates of, and procedures applicable to, the payment of per diem; the provision of drugs and medicines; and for which veterans VA will pay per diem. Subparts D, E, and F set forth standards that any State home seeking per diem payments for nursing home care (subpart D), domiciliary care (subpart E), or adult day health care (subpart F) must meet.
For the purposes of this part:
(a)
(b)
(2) If the Director of the VA Medical Center of jurisdiction determines that the applicable requirements and standards are met, the Director will submit a written recommendation for recognition to the Under Secretary for Health.
(3) If the Director does not recommend recognition, the Director will submit a written recommendation against recognition to the Under Secretary for Health and will notify in writing the State official who signed the letter submitted under paragraph (a) of this section and the State official authorized to oversee operations of the home. The notification will state the following:
(i) The specific standard(s) not met; and
(ii) The State's right to submit a response to the Under Secretary for Health, including any additional evidence, no later than 30 calendar days after the date of the notification to the State.
(c)
(d)
(2) After a State home is recognized, any new annex, new branch, or other expansion in the size or capacity of a home or any relocation of the home to a new facility must be separately recognized.
(a)
(b)
(c)
(d)
(i) The State home does not meet one or more of the applicable requirements or standards in this part;
(ii) None of these deficiencies immediately jeopardize the health or safety of any resident or participant;
(iii) No later than 20 working days after receipt by the State home of the survey report, the State submitted to the Director a written plan to remedy each deficiency in a specified amount of time; and
(iv) The plan is reasonable and the Director has sent a written notice to the appropriate person(s) at the State home informing him or her that the Director agrees to the plan.
(2)
(e)
(1)
(2)
(3)
(f)
(a)
(b)
(1) For nursing homes and domiciliaries, the home has at least 20 residents or has a number of residents consisting of at least 50 percent of the resident capacity of the home;
(2) For adult day health care programs of care, the program has at least 10 participants or has a number of participants consisting of at least 50 percent of participant capacity of the program.
(c)
Once a home has achieved recognition, the recognition will be terminated only if the State requests that the recognition be terminated, or if VA makes a final decision that affirms the Director's decision not to certify the State home.
(a)
(1) One-half of the daily cost of the care for each day the veteran is in the State home, as calculated under paragraph (b) of this section.
(2) The basic per diem rate for each day the veteran is in the State home. The basic per diem rate is established by VA for each fiscal year in accordance with 38 U.S.C. 1741(a) and (c).
To determine the number of days that a veteran was in a State home, see paragraph (c) of this section.
(b)
(c)
(2)
(d)
(1) Six hours or more in one calendar day in which a veteran receives adult day health care; or
(2) Any two periods of at least 3 hours each but less than 6 hours each in any 2 calendar days in the same calendar month in which the veteran receives adult day health care.
(3) Time during which the State home provides transportation between the veteran's residence and the State home or to a health care visit, or provides staff to accompany a veteran during transportation or a health care visit, will be included as time the veteran receives adult day health care.
(a)
(i) A completed VA Form 10-10EZ, Application for Medical Benefits (or VA Form 10-10EZR, Health Benefits Renewal Form, if a completed Form 10-10EZ is already on file at VA).
Domiciliary applicants and residents must complete the financial disclosure sections of VA Forms 10-10EZ and 10-10EZR, and adult day health care applicants may be required to complete the financial disclosure sections of these forms in order to enroll with VA. Although the nursing home applicants or residents or adult day health care participants do not complete the financial disclosure sections of VA Forms 10-10EZ and 10-10EZR, an unsigned form is incomplete, and VA will not accept the form.
(ii) A completed VA Form 10-10SH, State Home Program Application for Care—Medical Certification.
(2)
(b)
(2)
(3)
(a) In addition to the per diem payments under § 51.40 of this part, the
(1) The veteran:
(i) Has a singular or combined rating of less than 50 percent based on one or more service-connected disabilities and needs the drugs and medicines for a service-connected disability; and
(ii) Needs nursing home care for reasons that do not include care for a VA adjudicated service-connected disability; or
(2) The veteran:
(i) Has a singular or combined rating of 50 or 60 percent based on one or more service-connected disabilities and needs the drugs and medicines; and
(ii) Needs nursing home care for reasons that do not include care for a VA adjudicated service-connected disability.
(b) VA will also furnish drugs and medicines to a State home for a veteran receiving nursing home, domiciliary, or adult day health care in a State home pursuant to 38 U.S.C. 1712(d), as implemented by § 17.96 of this chapter, subject to the limitation in § 51.41(c)(2).
(c) VA may furnish a drug or medicine under paragraph (a) of this section and under § 17.96 of this chapter only if the drug or medicine is included on VA's National Formulary, unless VA determines a non-Formulary drug or medicine is medically necessary.
(d) VA may furnish a drug or medicine under this section and under § 17.96 of this chapter by having the drug or medicine delivered to the State home in which the veteran resides by mail or other means and packaged in a form that is mutually acceptable to the State home and to VA set forth in a written agreement.
(e) As a condition for receiving drugs or medicine under this section or under § 17.96 of this chapter, the State must submit to the VA medical center of jurisdiction a completed VA Form 10-0460 with the corresponding prescription(s) for each eligible veteran.
A veteran is an eligible veteran for the purposes of payment of per diem for nursing home care under this part if VA determines that the veteran needs nursing home care; is not barred from receiving care based on his or her service (see 38 U.S.C. 5303, 5303A), is not barred from receiving VA pension, compensation or dependency and indemnity compensation based on the character of a discharge from military service (see 38 CFR 3.12) and is within one of the following categories:
(a) Veterans with service-connected disabilities;
(b) Veterans who are former prisoners of war, who were awarded the Purple Heart, or who were awarded the medal of honor under 10 U.S.C. 3741, 6241, or 8741 or 14 U.S.C. 491;
(c) Veterans who were discharged or released from active military service for a disability incurred or aggravated in the line of duty;
(d) Veterans who receive disability compensation under 38 U.S.C. 1151;
(e) Veterans whose entitlement to disability compensation is suspended because of the receipt of retired pay;
(f) Veterans whose entitlement to disability compensation is suspended pursuant to 38 U.S.C. 1151, but only to the extent that such veterans' continuing eligibility for nursing home care is provided for in the judgment or settlement described in 38 U.S.C. 1151;
(g) Veterans who VA determines are unable to defray the expenses of necessary care as specified under 38 U.S.C. 1722(a);
(h) Veterans solely seeking care for a disorder associated with exposure to a toxic substance or radiation, for a disorder associated with service in the Southwest Asia theater of operations during the Persian Gulf War, as provided in 38 U.S.C. 1710(e), or for any illness associated with service in combat in a war after the Gulf War or during a period of hostility after November 11, 1998, as provided and limited in 38 U.S.C. 1710(e);
(i) Veterans who agree to pay to the United States the applicable co-payment determined under 38 U.S.C. 1710(f) and 1710(g).
Neither enrollment in the VA healthcare system nor eligibility to enroll is required to be an eligible veteran for the purposes of payment of per diem for nursing home care.
(a) A veteran is an eligible veteran for the purposes of payment of per diem for domiciliary care in a State home under this part if VA determines that the veteran is not barred from receiving care based on his or her service (see 38 U.S.C. 5303, 5303A), is not barred from receiving VA pension, compensation or dependency and indemnity compensation based on the character of a discharge from military service (see 38 CFR 3.12), and the veteran is:
(1) A veteran whose annual income does not exceed the maximum annual rate of pension payable to a veteran in need of regular aid and attendance; or
(2) A veteran who VA determines has no adequate means of support. The phrase “no adequate means of support” refers to an applicant for domiciliary care whose annual income exceeds the rate of pension described in paragraph (a)(1) of this section, but who is able to demonstrate to competent VA medical authority, on the basis of objective evidence, that deficits in health or functional status render the applicant incapable of pursuing substantially gainful employment, as determined by the Chief of Staff of the VA medical center of jurisdiction, and who is otherwise without the means to provide adequately for himself or herself, or be provided for in the community.
(b) For purposes of this section, the eligible veteran must be able to perform the following:
(1) Daily ablutions, such as brushing teeth, bathing, combing hair, and body eliminations, without assistance.
(2) Dress himself or herself with a minimum of assistance.
(3) Proceed to and return from the dining hall without aid.
(4) Feed himself or herself.
(5) Secure medical attention on an ambulatory basis or by use of a personally propelled wheelchair.
(6) Have voluntary control over body eliminations or have control by use of an appropriate prosthesis.
(7) Participate in some measure, however slight, in work assignments that support the maintenance and operation of the State home.
(8) Make rational and competent decisions as to his or her desire to remain in or leave the State home.
A veteran is an eligible veteran for payment of per diem to a State for adult day health care if VA determines that the veteran:
(a) Is not barred from receiving VA pension, compensation or dependency and indemnity compensation based on the character of a discharge from military service (see 38 CFR 3.12);
(b) Is enrolled in the VA health care system;
(c) Would otherwise require nursing home care; and
(d) Needs adult day health care because the veteran meets any one of the following conditions:
(1) The veteran has three or more Activities of Daily Living (ADL) dependencies.
(2) The veteran has significant cognitive impairment.
(3) The veteran has two ADL dependencies and two or more of the following conditions:
(i) Seventy-five years old or older;
(ii) High use of medical services,
(iii) Diagnosis of clinical depression; or
(iv) Living alone in the community.
(4) The veteran does not meet the criteria in paragraph (d)(1), (2), or (3) of this section, but nevertheless a licensed VA medical practitioner determines the veteran needs adult day health care services.
A State home must meet the requirements in subpart C and the standards in the applicable subpart to be recognized, certified, and receive per diem for that program of care:
(a) For nursing home care, subpart D.
(b) For domiciliary care, subpart E.
(c) For adult day health care, subpart F.
(a)
(1) It would be unsafe for veterans receiving care at a State home to remain in that home.
(2) The State is not, or believes that it will not be, able to provide care in the State home on a temporary or long-term basis for any or all of its veteran residents due to a situation involving the State home, and not due to a situation where a particular veteran's medical condition requires that the veteran be transferred to another facility, such as for a period of hospitalization.
(3) The State determines that the veterans must be evacuated to another facility or facilities.
(b)
(c)
(1) Each veteran who is evacuated must be placed in a facility that, at a minimum, will meet the needs for food, shelter, toileting, and essential medical care of that veteran.
(2) For veterans evacuated from nursing homes, the following types of facilities may meet the standards under paragraph (c)(1) of this section:
(i) VA Community Living Centers;
(ii) VA contract nursing homes;
(iii) Centers for Medicare and Medicaid Services certified facilities; and
(iv) Licensed nursing homes.
If none of the above options are available, veterans may be evacuated temporarily to other facilities that meet the standards under paragraph (c)(1) of this section.
(3) For veterans evacuated from domiciliaries, the following types of facilities may meet the standards in paragraph (c)(1) of this section:
(i) Emergency evacuation facilities identified by the city or State;
(ii) Assisted living facilities; and
(iii) Hotels.
(d)
(e)
The revision and additions read as follows:
(b) * * *
(2) The State home administrator;
(3) The director of nursing services (or other individual in charge of nursing services); and
(4) The State employee responsible for oversight of the State home if a contractor operates the State home.
(h) * * *
(3) If a veteran requires health care that the State home is not required to provide under this part, the State home may assist the veteran in obtaining that care from sources outside the State home, including the Veterans Health Administration. If VA is contacted about providing such care, VA will determine the best option for obtaining the needed services and will notify the veteran or the authorized representative of the veteran.
The State home must protect and promote the rights and quality of life of each resident receiving domiciliary care, and otherwise comply with the requirements in § 51.70, except § 51.70(b)(9), (h)(1), and (m); § 51.80, except § 51.80(a)(2) and (4) and (b); § 51.90; and § 51.100, except § 51.100(g)(2), (h), and (i)(5) through (7). The State Home must have a written procedure for admissions, discharges, and transfers. For purposes of this section, the terms “nursing home” and “nursing facility” or “facility” in the applicable provisions of the cited sections apply to a domiciliary.
(a)
(i) An accident involving the resident that results in injury and has the potential for requiring physician intervention;
(ii) A significant change in the resident's physical, mental, or psychosocial status (
(iii) A need to alter treatment significantly (
(iv) A decision to transfer or discharge the resident from the facility as specified in paragraph (d) of this section.
(2) The facility management must also promptly notify the resident when there is
(i) A change in room or roommate assignment as specified in § 51.100(f)(2); or
(ii) A change in resident rights under Federal or State law or regulations as specified in § 51.70(b)(1).
(3) The facility management must record and periodically update the address and phone number of the resident's legal representative or interested family member, but the resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes.
(b)
(1) The facility has documented the resident's need or desire to work in the comprehensive care plan;
(2) The comprehensive care plan described in § 51.310 specifies the nature of the work performed and whether the work is unpaid or paid;
(3) Compensation for work for which the facility would pay a prevailing wage if done by non-residents is paid at or above prevailing wages for similar work in the area where the facility is located; and
(4) The facility consulted with and the resident agrees to the work arrangement described in the comprehensive care plan.
(c)
(d)
(2)
(i) The transfer or discharge is necessary for the resident's welfare, including because the domiciliary resident's health has improved sufficiently so the resident no longer needs the services provided by the domiciliary;
(ii) The resident is in need of a higher level of long term or acute care;
(iii) The safety of individuals in the facility is endangered;
(iv) The health of individuals in the facility would otherwise be endangered;
(v) The resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility;
(vi) The domiciliary ceases to operate; or
(vii) The resident ceases to meet any of the eligibility criteria of § 51.51.
(3)
(4)
(i) Notify the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner he or she understands. The resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes.
(ii) Record the reasons in the resident's clinical record; and
(iii) Include in the notice the items described in paragraph (d)(6) of this section.
(5)
(ii) Notice may be made as soon as practicable before transfer or discharge when
(A) The safety of individuals in the facility would be endangered;
(B) The health of individuals in the facility would be otherwise endangered;
(C) The resident's health improves sufficiently so the resident no longer needs the services provided by the domiciliary; or
(D) The resident's needs cannot be met in the domiciliary.
(6)
(i) The reason for transfer or discharge;
(ii) The effective date of transfer or discharge;
(iii) The location to which the resident is transferred or discharged;
(iv) A statement that the resident has the right to appeal the action to the State official designated by the State; and
(v) The name, address and telephone number of the State long term care ombudsman.
(7)
(e)
(f)
(2) The activities program must be directed by a qualified coordinator.
(g)
(2) The State home must have a sufficient number of social workers to meet residents' needs.
(3) The State home must have a written policy on how it determines qualifications of social workers. It is highly recommended, but not required, that a qualified social worker is an individual with
(i) A bachelor's degree in social work from a school accredited by the Council of Social Work Education (
(ii) A social work license from the State in which the State home is located, if offered by the State, and
(iii) A minimum of one year of supervised social work experience in a health care setting working directly with individuals.
(4) The facility management must have sufficient support staff to meet patients' social services needs.
(5) Facilities for social services must ensure privacy for interviews.
(h)
(1) A safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible;
(2) Housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior;
(3) Clean bed and bath linens that are in good condition; and
(4) Private closet space in each resident's room, as specified in § 51.200(d)(2)(iv).
The State home must conduct accurate, written, medical and comprehensive assessments of each resident's medical and functional capacity upon admission, annually, and as required by a change in the resident's condition. The comprehensive assessment will use information from the medical assessment, and both assessments will inform the comprehensive care plan. The State home must have a written policy to determine how to coordinate and complete the comprehensive assessment process, including how it will review, and revise the comprehensive assessment in implementing the comprehensive care plan. The State home must review comprehensive assessments annually, and promptly after every significant change in the resident's physical, mental, or social condition.
(a)
(b)
(2) Each comprehensive assessment must be conducted or coordinated by a registered nurse with the participation of appropriate healthcare professionals, including at least one physician, the registered nurse, and one social worker. The registered nurse must sign and certify the assessment. The comprehensive assessment is to determine the care, treatment, and services that will meet the resident's initial and continuing needs. It is an objective evaluation of a resident's health and functional status, describing the resident's capabilities and impairments in performing activities of daily living, strengths, and needs. The assessment gathers information through collection of data, observation, and examination.
(c)
(i) The services that are to be furnished to support the resident's highest practicable emotional, behavioral, social rehabilitation, and physical well-being;
(ii) The specific work the resident agrees to do to share in the maintenance and operation of the State home upon consultation with the interdisciplinary team, and whether that work is paid or unpaid; and
(iii) Any services that would otherwise be required under § 51.350 but are not provided due to the resident's exercise of rights under § 51.70, including the right in § 51.70(b)(4) to refuse treatment.
(2) A comprehensive care plan must be:
(i) Developed no later than 21 calendar days after admission; and
(ii) Prepared by an interdisciplinary team of health professionals that may include the primary care physician or a Licensed Independent Practitioner (or designated Physician's Assistant or Nurse Practitioner), a social worker, and a registered nurse who have responsibility for the resident, and other staff in appropriate disciplines as determined by the resident's needs, and, to the extent practicable, the participation of the resident and the resident's family (subject to the consent of the resident) or the resident's legal representative, if appropriate;
(iii) Reviewed periodically and revised consistent with the most recent comprehensive assessment by a team of qualified persons no less often than semi-annually; and
(iv) Revised promptly after a comprehensive assessment reveals a significant change in the resident's condition.
(3) The services provided by the facility must
(i) Meet professional standards of quality; and
(ii) Be provided by qualified persons in accordance with each resident's written comprehensive care plan.
(d)
(i) A summary of the resident's stay, the resident's status at the time of the discharge, and the resident's progress on the comprehensive care plan in paragraph (b)(2) of this section; and
(ii) A post-discharge comprehensive care plan that is developed with the participation of the resident.
(2) A resident has the right to decide if he or she would like to involve his or her legal representative or interested family member in development of a post-discharge plan.
The State home must provide each resident with the care described in this subpart in accordance with the assessment and comprehensive care plan.
(a)
(2) Examples of sentinel events are as follows:
(i) Any resident death, paralysis, coma or other major permanent loss of function associated with a medication error;
(ii) Any suicide of a resident;
(iii) Assault, homicide or other crime resulting in resident death or major permanent loss of function; or
(iv) A resident fall that results in death or major permanent loss of function as a direct result of the injuries sustained in the fall.
(3) The State home must report sentinel events to the Director no later than 24 hours after identification. The VA medical center of jurisdiction must report sentinel events by notifying the VA Network Director (10N1-10N22) and the Director, Office of Geriatrics and Extended Care—Operations (10NC4) no later than 24 hours after notification.
(4) The State home must establish a mechanism to review and analyze a sentinel event resulting in a written report to be submitted to the VA Medical Center of jurisdiction no later than 10 working days following the event. The purpose of the review and analysis of a sentinel event is to prevent injuries to residents, visitors, and personnel, and to manage those injuries that do occur and to minimize the negative consequences to the injured individuals and the State home.
(b)
(1) Bathe, dress, and groom;
(2) Transfer and ambulate;
(3) Toilet;
(4) Eat; and
(5) Talk or otherwise communicate.
(c)
(1) In making appointments; and
(2) By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.
(d)
(e)
(1) The resident environment remains as free of accident hazards as possible; and
(2) Each resident receives adequate supervision and assistive devices to prevent accidents.
(f)
(g)
(1) Injections;
(2) Colostomy, ureterostomy, or ileostomy care;
(3) Respiratory care;
(4) Foot care; and
(5) Non-customized or non-individualized prosthetic devices.
(h)
(i)
(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0160.)
The State home must provide an organized nursing service with a sufficient number of qualified nursing personnel to meet the total nursing care needs of all residents within the facility, 24 hours a day, 7 days a week, as determined by their comprehensive assessments and their comprehensive care plans. The nursing service must be under the direction of a full-time registered nurse who is currently licensed by the State and has, in writing, administrative authority, responsibility, and accountability for the functions, activities, and training of the nursing service's staff.
The State home must provide its residents the primary care necessary to enable them to attain or maintain the highest practicable physical, mental, and psychosocial well-being. When a resident needs care other than the State home is required to provide under this subpart, the State home is responsible to assist the resident to obtain that care. The State home must ensure that a physician personally approves in writing a recommendation that an individual be admitted to a domiciliary. Each resident must remain at all times under the care of a licensed medical practitioner assigned by the State home. The name of the practitioner will be listed in the resident's medical record. The State home must ensure that all of the following conditions in paragraphs (a) through (e) of this section are met:
(a)
(b)
(c)
(1) Review the resident's total program of care, including medications and treatments;
(2) Write, sign, and date progress notes; and
(3) Sign and date all orders.
(d)
(e)
The State home domiciliary care programs must comply with the requirements of § 51.140, except § 51.140(f)(2) through (4) concerning dietary services; § 51.170 concerning dental services; § 51.180, except § 51.180(c) concerning pharmacy services; § 51.190 concerning infection control; and § 51.200, except § 51.200(a), (b), (d)(1)(ii) through (x), (f), and (h)(3) concerning the physical environment. For purposes of this section, the references to “facility” in the cited sections also refer to a domiciliary.
(a)
(2) The facility staff must offer snacks at bedtime daily.
(3) Sixteen hours may elapse between a substantial evening meal and breakfast the following day when a nourishing snack is offered at bedtime.
(b)
(2) The pharmacist must report any irregularities to the primary care physician and the director of nursing, and these reports must be acted upon.
(c)
(d)
The State home must follow § 51.210 regarding administration in providing domiciliary care. For purposes of this section, the references in the cited section to nursing home and nursing home care refer to a domiciliary and domiciliary care.
The State home must protect and promote the rights of a participant in an adult day health care program, including the rights set forth in § 51.70, except for the right set forth in § 51.70(m). For purposes of this section, the references to resident in the cited section also refer to a participant in this section.
The State home must post a written statement of participant and family caregiver responsibilities in a place where participants in the adult day health care program and their families will see it and must provide a copy to the participant and caregiver at or before the time of the intake screening. The statement of responsibilities must include the following:
(a) Treat personnel with respect and courtesy;
(b) Communicate with staff to develop a relationship of trust;
(c) Make appropriate choices and seek appropriate care;
(d) Ask questions and confirm your understanding of instructions;
(e) Share opinions, concerns, and complaints with the program director;
(f) Communicate any changes in the participant's condition;
(g) Communicate to the program director about medications and remedies used by the participant;
(h) Let the program director know if the participant decides not to follow any instructions or treatment; and
(i) Communicate with the adult day health care staff if the participant is unable to attend adult day health care.
(a)
(b)
(1) The transfer and discharge is necessary for the participant's welfare and the participant's needs cannot be met in the adult day health care setting;
(2) The transfer and discharge is appropriate because the participant's health has improved sufficiently so that the participant no longer needs the services provided in the adult day health care program;
(3) The safety of individuals in the facility is endangered;
(4) The health of individuals in the facility would otherwise be endangered;
(5) The participant has failed, after reasonable and appropriate notice, to pay for participation in the adult day health care program; or
(6) The adult day health care program ceases to operate.
(c)
(1) Notify the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner he or she understands. The resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes;
(2) Record the reasons in the participant's clinical record; and
(3) Include in the notice the items described in paragraph (e) of this section.
(d)
(2) Notice may be made as soon as practicable before a transfer or discharge when
(i) The safety of individuals in the facility would be endangered;
(ii) The health of individuals in the facility would be otherwise endangered;
(iii) The participant's health improves sufficiently that the participant no longer needs the services provided by the adult day health care program of care; or
(iv) The participant's needs cannot be met in the adult day health care program of care.
(e)
(1) The reason for the transfer or discharge;
(2) The effective date of the transfer or discharge;
(3) The location to which the participant is taken in accordance with the transfer or discharge, if any;
(4) A statement that the participant has the right to appeal the action to the State official responsible for the oversight of State home programs; and
(5) The name, address and telephone number of the first listed of the following that exists in the State:
(i) The State long-term care ombudsman, if the long-term care ombudsman serves adult day health care facilities; or
(ii) Any State ombudsman or advocate who serves adult day health care participants; or
(iii) The State agency responsible for oversight of State adult day care facilities.
(f)
(g)
(1) Participants will be given a transfer or discharge from the adult day health care program to the hospital when transfer or discharge is medically appropriate as determined by a physician; and
(2) Medical and other information needed for care and treatment of participants will be exchanged between the facility and the hospital.
(a)
(b)
(c)
The State home must meet the requirements regarding the use of restraints, abuse, and other matters concerning staff treatment of participants set forth in § 51.90. For purposes of this section, the references in the cited section to resident refer to a participant in this section.
The State home must provide an environment that supports the quality of life of each participant by maximizing the participant's potential strengths and skills. (a)
(b)
(1) Choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care;
(2) Interact with members of the community both inside and outside the facility; and
(3) Make choices about aspects of his or her life in the facility that are significant to the participant.
(c)
(1) A participant's family has the right to meet with families of other participants in the program.
(2) Staff or visitors may attend meetings of participant or family groups at the group's invitation.
(3) The State home must respond to written requests that result from group meetings.
(4) The State home must listen to the views of any participant or family group and act upon the concerns of participants and families regarding policy and operational decisions affecting participant care in the program.
(d)
(e)
(2) The activities program must be directed by a qualified professional who is a qualified therapeutic recreation specialist or an activities professional who:
(i) Is licensed, if applicable, by the State in which practicing; and
(ii) Is certified as a therapeutic recreation specialist or an activities professional by a recognized certifying body.
(3) A critical role of adult day health care is to build relationships and create a culture that supports, involves, and validates the participant. Therapeutic activity refers to that supportive culture and is a significant aspect of the individualized comprehensive care plan. A participant's activity includes everything the individual experiences during the day, not just arranged events. As part of effective therapeutic activity, the adult day health care program must:
(i) Provide direction and support for participants, including breaking down activities into small, discrete steps or behaviors, if needed by a participant;
(ii) Have alternative programming available for any participant unable or unwilling to take part in group activity;
(iii) Design activities that promote personal growth and enhance the self-image and/or improve or maintain the functioning level of participants to the extent possible;
(iv) Provide opportunities for a variety of involvements (social, intellectual, cultural, economic, emotional, physical, and spiritual) at different levels, including community activities and events;
(v) Emphasize participants' strengths and abilities rather than impairments, and contribute to participants' feelings of competence and accomplishment; and
(vi) Provide opportunities to voluntarily perform services for community groups and organizations.
(f)
(2) An adult day health care program must provide a qualified social worker to furnish social services.
(3) A qualified social worker is an individual with:
(i) A bachelor's degree in social work from a school accredited by the Council of Social Work Education (
(ii) A social work license from the State in which the State home is located, if that license is offered by the State; and
(iii) A minimum of one year of supervised social work experience in a health care setting working directly with individuals.
(4) The State home must have sufficient social workers and support staff to meet participant and family social service needs. The adult day health care program must:
(i) Provide counseling to participants and to families/caregivers;
(ii) Facilitate the participant's adaptation to the adult day health care program and active involvement in the comprehensive care plan, if appropriate;
(iii) Arrange for services not provided by adult day health care, and work with these resources to coordinate services;
(iv) Serve as an advocate for participants by asserting and safeguarding the human and civil rights of the participants;
(v) Assess signs of mental illness or dementia and make appropriate referrals;
(vi) Provide information and referral for persons not appropriate for adult day health care;
(vii) Provide family conferences, and serve as liaison between participant, family/caregiver and program staff;
(viii) Provide individual or group counseling and support to caregivers and participants;
(ix) Conduct support groups or facilitate participant or family/caregiver participation in support groups;
(x) Assist program staff in adapting to changes in participants' behavior; and
(xi) Provide or arrange for individual, group, or family psychotherapy for participants with significant psychosocial needs.
(5) Space for social services must be adequate to ensure privacy for interviews.
(g)
(1) A safe, clean, comfortable, and homelike environment, and support the participants' ability to function as independently as possible and to engage in program activities;
(2) Housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior;
(3) Private storage space for each participant sufficient for a change of clothes. Upon request of the participant, the State home must offer storage space that can be secured with a lock;
(4) Interior signs to facilitate participants' ability to move about the facility independently and safely;
(5) A clean bed or reclining chair available for acute illness;
(6) A shower for participants;
(7) Adequate and comfortable lighting levels in all areas;
(8) Comfortable and safe temperature levels; and
(9) Comfortable sound levels.
The State home must have a written policy to determine how to coordinate and complete the written initial and comprehensive assessment processes upon admission, annually, and as required by a change in the participant's condition. The State home must also
(a)
(b)
(1) Ability to ambulate,
(2) Ability to use bathroom facilities,
(3) Ability to eat and swallow,
(4) Ability to hear,
(5) Ability to see,
(6) Ability to experience feeling and movement,
(7) Ability to communicate,
(8) Risk of wandering,
(9) Risk of elopement,
(10) Risk of suicide,
(11) Risk of deficiencies regarding social interactions, and
(12) Special needs (such as medication, diet, nutrition, hydration, or prosthetics).
(c)
(2) Each person who completes a portion of an assessment must sign and certify the accuracy of that portion of the assessment.
(3) The results of the assessments must be used to develop, review, and revise the participant's individualized comprehensive care plan.
(d)
(i) The services that are to be provided as part of the program of care and by other sources to attain or maintain the participant's highest physical, mental, and psychosocial well-being as required under § 51.430;
(ii) Any services that would otherwise be required under § 51.430 but are not provided due to the participant's exercise of rights under § 51.70, including the right to refuse treatment under § 51.70(b)(4);
(iii) Type and scope of interventions to be provided in order to reach desired, realistic outcomes;
(iv) Roles of participant and family/caregiver; and
(v) Discharge or transition plan, including specific criteria for discharge or transfer.
(2) The services provided or arranged by the State home must
(i) Meet professional standards of quality; and
(ii) Be provided by qualified persons in accordance with each participant's comprehensive care plan.
(e)
(1) A summary of the participant's care;
(2) A summary of the participant's status at the time of the discharge to include items in paragraph (b) of this section; and
(3) A discharge/transition plan related to changes in service needs and changes in functional status that prompted transition to another program of care.
Each participant must receive, and the State home must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and comprehensive care plan.
(a)
(2)
(3)
(b)
(1)
(i) Bathe, dress, and groom;
(ii) Transfer and ambulate;
(iii) Toilet; and
(iv) Eat.
(2)
(3)
(c)
(d)
The State home must provide an organized nursing service with a sufficient number of qualified nursing personnel to meet the total nursing care needs, as determined by participant assessments and individualized comprehensive care plans, of all participants in the program.
(a) There must be at least one registered nurse on duty each day of operation of the adult day health care program. This nurse must be currently licensed by the State and must have, in writing, administrative authority, responsibility, and accountability for the functions, activities, and training of the nursing and program assistants.
(b) The number and level of nursing staff is determined by the authorized capacity of participants and the nursing care needs of the participants.
(c) Nurse staffing must be adequate for meeting the standards of this part.
The State home must comply with the requirements concerning the dietary services set forth in § 51.140, except paragraph 51.140(f). For purposes of this section, the references in the cited section to resident refer to a participant in subpart F of this part. The State home adult day health care program will provide nourishment to participants on the following schedule:
(a) At regular times comparable to normal mealtimes in the community, each participant may receive and program management must provide at least two meals daily for those veterans staying more than four hours and at least one meal for those staying less than four hours.
(b) The program management must offer snacks and fluids as appropriate to meet the participants' nutritional and fluid needs.
As a condition of enrollment in adult day health care program, a participant must have a written physician order for admission. Each participant's medical record must contain the name of the participant's primary care physician. If a participant's medical needs require that the participant be placed in an adult day health care program that offers medical supervision, the primary care physician must state so in the order for admission. Each participant must remain under the care of a physician.
(a)
(1) The medical care of each participant is supervised by a primary care physician; and
(2) Another physician is available to supervise the medical care of participants when their primary care physician is unavailable.
(b)
(1) The participant must be seen by the primary care physician at least annually and as indicated by a change of condition.
(2) The program management must have a policy to help ensure that adequate medical services are provided to the participant.
(3) At the option of the primary care physician, required reviews in the program after the initial review may alternate between personal physician reviews and reviews by a physician assistant, nurse practitioner, or clinical nurse specialist in accordance with paragraph (e) of this section.
(c)
(d)
(e)
(i) A certified physician assistant or a certified nurse practitioner, or
(ii) A clinical nurse specialist who-
(A) Is acting within the scope of practice as defined by State law; and
(B) Is under the supervision of the physician.
(2) The primary care physician may not delegate a task when the provisions of this part specify that the primary care physician must perform it personally, or when the delegation is prohibited under State law or by the State home's policies.
(a)
(1) Provide the required services; or
(2) Obtain the required services and equipment from an outside resource, in accordance with § 51.210(h), from a provider of specialized rehabilitative services.
(b)
(a) If the adult day health care program offers medical supervision, program management must, if necessary, assist the participant and family/caregiver
(1) In making dental appointments; and
(2) By arranging for transportation to and from the dental services.
(b) If the adult day health care program offers medical supervision, program management must promptly assist and refer participants with lost or damaged dentures to a dentist.
If the adult day health care program offers medical supervision, the program management must assist participants with the management of medication and have a system for disseminating drug information to participants and program staff in accordance with this section.
(a)
(1) Provide reminders or prompts to participants to initiate and follow through with self-administration of medications.
(2) Establish a system of records to document the administration of drugs by participants and/or staff.
(3) Ensure that drugs and biologicals used by participants are labeled in accordance with currently accepted professional principles, and include the appropriate accessory and cautionary instructions, and the expiration dates when applicable.
(4) Store all drugs, biologicals, and controlled schedule II drugs listed in 21 CFR 1308.12 in locked compartments under proper temperature controls, permit only authorized personnel to have access, and otherwise comply with all applicable State and Federal laws.
(b)
The State home must meet the requirements concerning infection control set forth in § 51.190. For purposes of this section, the references in the cited section to resident refer to a participant in this section.
The State home must ensure that the physical environment is designed, constructed, equipped, and maintained to protect the health and safety of participants, personnel, and the public.
(a)
(b)
(i) Provide sufficient space and equipment in dining, health services, recreation, and program areas to enable staff to provide participants with needed services as required by this subpart F and as identified in each participant's comprehensive care plan; and
(ii) Maintain all essential mechanical, electrical, and patient care equipment in safe operating condition.
(2) Each adult day health care program, when it is co-located in a nursing home, domiciliary, or other care facility, must have its own separate designated space during operational hours.
(3) The indoor space for adult day health care must be at least 100 square feet per participant including office space for staff and must be 60 square feet per participant excluding office space for staff.
(4) Each program of care will need to design and partition its space to meet its needs, but the following functional areas must be available:
(i) A dividable multipurpose room or area for group activities, including dining, with adequate table-setting space.
(ii) Rehabilitation rooms or an area for individual and group treatments for occupational therapy, physical therapy, and other treatment modalities.
(iii) A kitchen area for refrigerated food storage, the preparation of meals and/or training participants in activities of daily living.
(iv) An examination and/or medication room.
(v) A quiet room (with a bed or a reclining chair), which functions to separate participants who become ill or disruptive, or who require rest, privacy, or observation. It should be separate from activity areas, near a restroom, and supervised.
(vi) Bathing facilities adequate to facilitate bathing of participants with functional impairments.
(vii) Toilet facilities and bathrooms easily accessible to people with mobility problems, including participants in wheelchairs. There must be at least one toilet for every eight participants. The toilets must be equipped for use by persons with limited mobility, easily accessible from all programs areas,
(viii) Adequate storage space. There should be space to store arts and crafts materials, wheelchairs, chairs, individual handiwork, and general supplies. Locked cabinets must be provided for files, records, supplies, and medications.
(ix) An individual room for counseling and interviewing participants and family members.
(x) A reception area.
(xi) An outside space that is used for outdoor activities that is safe, accessible to indoor areas, and accessible to those with a disability. This space may include recreational space and garden area. It should be easily supervised by staff.
(c)
(d)
(1) Clinic rooms; and
(2) Toilet and bathing facilities.
(e)
(1) Establish procedures to ensure that water is available to essential areas if there is a loss of normal water supply;
(2) Have adequate outside ventilation by means of windows, or mechanical ventilation, or a combination of the two;
(3) Equip corridors, when available, with firmly-secured handrails on each side; and
(4) Maintain an effective pest control program so that the facility is free of pests and rodents.
For purposes of this section, the references in the cited section to nursing home and nursing home care refer to adult day health care programs and adult day health care. The State home must comply with all administration requirements set forth in § 51.210 except for the following if the adult day health care program does not offer medical supervision:
(a)
(b)
(c)
Transportation of participants to and from the adult day health care facility must be a component of the overall program of care.
(a)(1) Except as provided in paragraph (a)(2) of this section, the State home must provide for transportation to enable participants, including persons with disabilities, to attend the program and to participate in State home-sponsored outings.
(2) The veteran or the family of a veteran may decline transportation offered by the adult day health care program and make their own arrangements for transportation.
(b) The State home must have a transportation policy that includes procedures for routine and emergency transportation. All transportation (including that provided under contract) must be in compliance with such procedures.
(c) The State home must ensure that the transportation it provides is by drivers who have access to a device for two-way communication.
(d) All systems and vehicles used by the State home to comply with this section must meet all applicable local, State and Federal regulations.
(e) The State home must ensure that the care needs of each participant are addressed during transportation furnished by the home.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to revise the List of Migratory Birds protected by the Migratory Bird Treaty Act (MBTA) by both adding and removing species. Reasons for the changes to the list include adding species based on new taxonomy and new evidence of natural occurrence in the United States or U.S. territories, removing species no longer known to occur within the United States or U.S. territories, and changing names to conform to accepted use. The net increase of 59 species (66 added and 7 removed) would bring the total number of species protected by the MBTA to 1,085. We regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of migratory birds. An accurate and up-to-date list of species protected by the MBTA is essential for public notification and regulatory purposes.
We will accept comments received or postmarked on or before January 28, 2019. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Eric L. Kershner, Chief of the Branch of Conservation, Permits, and Regulations; Division of Migratory Bird Management; U.S. Fish and Wildlife Service; MS: MB; 5275 Leesburg Pike, Falls Church, VA 22041-3803; (703) 358-2376.
We have statutory authority and responsibility for enforcing the MBTA (16 U.S.C. 703-712), the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 742l), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-j). The MBTA implements Conventions between the United States and four neighboring countries for the protection of migratory birds, as follows:
(1)
(2)
(3)
(4)
Our purpose is to inform the public of the species protected by the MBTA and its implementing regulations. These regulations are found in Title 50, Code of Federal Regulations (CFR), parts 10, 20, and 21. We regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of migratory birds. An accurate and up-to-date list of species protected by the MBTA is essential for notifying the public of regulatory protections.
The amendments we are proposing are needed to:
(1) Add 17 species that qualify for protection under the MBTA;
(2) Correct the spelling of 3 species names on the alphabetized list;
(3) Correct the spelling of 3 species names on the taxonomic list;
(4) Add 22 species based on new distributional records documenting their natural occurrence in the United States or U.S. territories since 2010;
(5) Add one species moved from a family that was not protected to a family now protected under the MBTA as a result of taxonomic changes;
(6) Add 26 species newly recognized as a result of recent taxonomic changes;
(7) Remove 7 species not known to occur within the boundaries of the United States or U.S. territories as a result of recent taxonomic changes;
(8) Change the common (English) names of 40 species to conform to accepted use; and
(9) Change the scientific names of 114 species to conform to accepted use.
The List of Migratory Birds (50 CFR 10.13) was last revised on November 1, 2013 (78 FR 65844). The amendments proposed in this rule were necessitated by eight published supplements to the 7th (1998) edition of the American Ornithologists' Union (AOU, now recognized as American Ornithological Society (AOS)) Check-list of North American Birds (AOU 2011, AOU 2012, AOU 2013, AOU 2014, AOU 2015, AOU 2016, AOS 2017, and AOS 2018) and the 2017 publication of the Clements Checklist of Birds of the World (Clements et al. 2017).
Although bird names (common and scientific) are relatively stable, staying current with standardized use is necessary to avoid confusion in communications. In making our determinations, we primarily relied on
A species qualifies for protection under the MBTA by meeting one or more of the following criteria:
(1) It occurs in the United States or U.S. territories as the result of natural biological or ecological processes and is currently, or was previously listed as, a species or part of a family protected by one of the four international treaties or their amendments. Any species that occurs in the United States or U.S. territories solely as a result of intentional or unintentional human-assisted introduction does not qualify for the MBTA list, regardless of whether the family the species belongs to is listed in any of the treaties, unless:
• It was native to the United States or its territories and extant in 1918;
• It was extirpated after 1918 throughout its range in the United States and its territories; and
• After such extirpation, it was reintroduced in the United States or its territories as part of a program carried out by a Federal agency.
(2) Revised taxonomy results in it being newly split from a species that was previously on the list, and the new species occurs in the United States or U.S. territories as the result of natural biological or ecological processes. If a newly recognized native species is considered extinct (following the classification of the American Ornithological Society (AOS) or, for species not covered by the AOS, the Clements checklist or peer-reviewed literature), that species will still be included if either of the following criteria apply:
• The species resembles extant species included in the list that may be affected by trade if the species is not included; or
• Not including the species may create difficulties implementing the MBTA and its underlying Conventions.
(3) New evidence exists for its natural occurrence in the United States or U.S. territories resulting from new or natural distributional changes and the species occurs in a protected family. Records must be documented, accepted, and published by the AOS committee. For the U.S. Pacific territories that fall outside the geographic scope of the AOS and for which there is no identified ornithological authority, new evidence of a species' natural occurrence will be based on the Clements checklist and then published peer-reviewed literature, in that order.
In accordance with the Migratory Bird Treaty Reform Act of 2004 (MBTRA) (Pub. L. 108-447, 118 Stat. 2809, 3071-72), we only include migratory bird species that are native to the United States or U.S. territories. A native migratory bird species is one that is present as a result of natural biological or ecological processes. The list at 50 CFR 10.13 does not include nonnative species that occur in the United States or U.S. territories solely as a result of intentional or unintentional human-assisted introduction(s). Elsewhere in today's
Several taxonomic changes were made at the Order and Family level by the AOS since our 2013 publication of the list (78 FR 65844; November 1, 2013). These changes affect the inclusion and taxonomic order of species on this list. Specifically, the Order Cathartiformes (New World vultures) was split from the Accipitriformes (diurnal birds of prey). Cathartiformes now includes the Family Cathartidae (vultures and California condor). At the Family level, the Oceanitidae (southern storm-petrels) was split from the Hydrobatidae (northern storm-petrels), the Tityridae (becards and tityras) was split from the Tyrannidae (tyrant flycatchers), the Passerellidae (towhees, sparrows, and juncos) was split from the Emberizidae (buntings), the Megaluridae (
All species previously receiving protection under the MBTA that have been moved to newly created Families continue to be protected under the MBTA.
The proposed amendments (66 additions, 7 removals, and 154 name changes) would affect a total of 204 species and would result in a net addition of 59 species to the List of Migratory Birds, increasing the number of species on the list from 1,026 to
(1) Add 17 species that qualify for protection by the MBTA but have not been added previously. The addition of these species is the result of either accepting AOS taxonomic updates that were previously excluded or determinations of documented natural occurrence in the United States or U.S. territories. The species and relevant publication(s) are:
(2) Correct the spelling of three common or scientific names on the alphabetized list:
(3) Correct the spelling of three common or scientific names on the taxonomic list:
(4) Add 22 species based on review and acceptance by the AOS (since 2010) or by other appropriate ornithological authorities of new distributional records documenting their occurrence in the United States or U.S. territories. These species belong to families covered by at least one of the four international conventions, and all are considered to be of accidental or casual occurrence. For each species, we list the State in which it has been recorded plus the relevant publication:
(5) Add one species because of recent taxonomic changes transferring a species in a Family formerly not protected by the MBTA (Coerebidae) into a Family protected under the MBTA (Thraupidae). We reference the AOU publication supporting the change: Bananaquit,
(6) Add 26 species because of recent taxonomic changes in which taxa formerly treated as conspecific have been determined to be distinct species. Given that each of these species was formerly treated as conspecific with a listed species, these additions would not change the protective status of any of these taxa, only the names by which they are known. In each case, we reference the AOS or relevant publication supporting the change:
(7) Remove seven species based on revised taxonomic treatments, either because a species is taxonomically merged with another species, either on or off the list; a species previously on the list is taxonomically split into multiple species and the new species is not known to occur within the United States or U.S. territories; or the species is considered extinct (following the classification of the AOS or, for species not covered by the AOS, the Clements checklist or peer-reviewed literature) unless any of the following criteria apply: It is protected under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
(8) Revise the common (English) names of 40 species to conform to the most recent nomenclatural treatment as described in AOU publications 2011, 2012, 2013, 2014, 2015, 2016, AOS 2017, AOS 2018, and Clements et al. (2017). Hawaiian species names are modified to official Hawaiian spelling, following the Pukui-Elbert Hawaiian Dictionary, adding the diacritical marks to the common names where applicable. The Government Publishing Office Style Manual requires the words Hawaii and Kauai to be spelled without the diacritical mark. These revisions do not change the protective status of any of these taxa, only the names by which they are known. In each case, the update is described in the table, below.
(9) Revise the scientific names of 114 species to conform to the most recent nomenclatural treatment as described in AOU publications 2011, 2012, 2013, 2014, 2015, 2016, AOS 2017, AOS 2018, and Clements et al. (2017). These revisions do not change the protective status of any of these taxa, only the names by which they are known. In each case, the update is described in the table, below.
Table of Proposed Name Changes, as described in categories 8 and 9, above. Table is organized following AOS (2017) taxonomic order. The relevant AOS publication is provided. Hawaiian common name changes are indicated with a (—).
The species are listed in two formats to suit the needs of different segments of the public: alphabetically in 50 CFR 10.13(c)(1) and taxonomically in 50 CFR 10.13(c)(2). In the alphabetical listing, species are listed by common (English) group names, with the scientific name of each species following the English group name. This format, similar to that used in modern telephone directories, is most useful to members of the lay public. In the taxonomic listing, species are listed in phylogenetic sequence by scientific name, with the English name following the scientific name. To help clarify species relationships, we also list the higher-level taxonomic categories of Order, Family, and Subfamily. This format follows the sequence adopted by the AOS (1998, 2017) and is most useful to ornithologists and other scientists.
The MBTA does not apply to:
(1) Nonnative species introduced into the United States or U.S. territories by means of intentional or unintentional human assistance that belong to families or groups covered by the Canadian, Mexican, or Russian Conventions. Elsewhere in today's
(2) Species native or nonnative to the United States or U.S. territories that either belong to families or groups not referred to in the Canada, Mexico, and Russia Conventions or are not included by species name in the Japan Convention. This includes the Tinamidae (tinamous), Megapodiidae (megapodes), Cracidae (chachalacas), Odontophoridae (New World quail), Phasianidae (grouse, ptarmigan, and turkeys), Pteroclidae (sandgrouse), Heliornithidae (finfoots), Burhinidae (thick-knees), Glareolidae (pratincoles), Todidae (todies), Psittacidae (parrots), Psittaculidae (Old World parrots), Meliphagidae (honeyeaters), Dicruridae (drongos), Monarchidae (monarchs), Pycnonotidae (bulbuls), Scotocercidae (bush warblers and allies), Zosteropidae (white-eyes), Sturnidae (starlings, except as listed in Japanese treaty), Ploceidae (weavers), Estrildidae (estrildid finches), and Passeridae (Old World sparrows, including house or English sparrow), as well as numerous other families not represented in the United States or U.S. territories.
Any final action resulting from this proposed rule must be based on the best scientific and commercial data available and be as accurate and as effective as possible. We request comments or information from other concerned governmental agencies, the scientific community, industry, or any other
Please include sufficient information with your submission (such as electronic copies of scientific journal articles or other publications, preferably in English) to allow us to verify any scientific or commercial information you include.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.
This proposed rule is not an Executive Order (E.O.) 13771 (82 FR 9339, February 3, 2017) regulatory action because this proposed rule is not significant under E.O. 12866.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that, if adopted as proposed, this action would not have a significant economic impact on a substantial number of small entities. This rule is an administrative action to update the list of migratory bird species protected under the Conventions. Consequently, we certify that, if adopted as proposed, this rule would not have a significant economic impact on a substantial number of small entities; therefore, a regulatory flexibility analysis is not required.
This proposed rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It would not have a significant impact on a substantial number of small entities.
a. This proposed rule would not have an annual effect on the economy of $100 million or more.
b. This proposed rule would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. This proposed rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
a. This proposed rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. This proposed rule is an administrative action to update the list of migratory bird species protected under the Conventions; it would not affect small government activities in any significant way.
b. This proposed rule would not produce a Federal mandate of $100 million or greater in any year;
In accordance with Executive Order 12630, this proposed rule does not have significant takings implications. This proposed rule does not contain a provision for taking of private property. Therefore, a takings implication assessment is not required.
This proposed rule does not have sufficient Federalism effects to warrant preparation of a federalism summary impact statement under Executive Order 13132. It does not interfere with the States' ability to manage themselves or their funds. No significant economic impacts are expected to result from the updating of the list of migratory bird species.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This proposed rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Given that the proposed revision of 50 CFR 10.13 is strictly administrative in nature and will have no or minor environmental effects, it is categorically excluded from further NEPA requirements (43 CFR 46.210(i)).
Of the species on the List of Migratory Birds, 84 species, subspecies, or distinct population segments are also listed as endangered or threatened under section 4 of the ESA of 1973, as amended (16 U.S.C. 1531
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. The proposed revisions to existing regulations in this rule are purely administrative in nature and do not interfere with the tribes' ability to manage themselves or their funds or to regulate migratory bird activities on tribal lands.
On May 18, 2001, the President issued Executive Order 13211 addressing regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this proposed rule would only affect the listing of protected species in the United States, it is not a significant regulatory action under Executive Order 12866, and does not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
A complete list of all references cited is available on
Exports, Fish, Imports, Law enforcement, Plants, Transportation, Wildlife.
For the reasons discussed in the preamble, we propose to amend title 50, chapter I, subchapter B, part 10 of the Code of Federal Regulations, as follows:
16 U.S.C. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.
(c)
(1)
(2)
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |